NY State Senate Bill 2023-S5617

Senate Bill S5617

2023-2024 Legislative Session

Relates to providing reforms to the New York state worker adjustment and retraining notification act; repealer

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Current Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to labor
Mar 08, 2023	referred to labor

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2023-S5617 (ACTIVE) - Details

Current Committee:: Senate Labor
Law Section:: Labor Law
Laws Affected:: Amd §§860-a, 860-b, 860-c, 860-d, 860-e & 860-g, rpld §860-b sub 3, Lab L
Versions Introduced in 2021-2022 Legislative Session:: S4845

2023-S5617 (ACTIVE) - Summary

Removes the exclusion of part-time employees from certain definitions relating to employment and expanding the definition of employer; removes certain exclusions for employer notice requirements for the closing of a facility; removes the discretionary reduction of penalties for employers for certain acts or omissions concerning notice requirements for mass layoffs, relocations or employment loss; removes the maximum time period for determining back pay and other liabilities for certain employees who experience employment loss

2023-S5617 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5617

SPONSOR: MAYER
 
TITLE OF BILL:

An act to amend the labor law, in relation to removing the exclusion of
part-time employees from certain definitions relating to employment and
expanding the definition of employer; removing certain exclusions for
employer notice requirements for the closing of a facility; removing the
discretionary reduction of penalties for employers for certain acts or
omissions concerning notice requirements for mass layoffs, relocations
or employment loss; removing the maximum time period for determining
back pay and other liabilities for certain employees who experience
employment loss; allowing the attorney general to take certain action to
assist certain employees in receiving back pay and other liabilities;
requiring employers to pay severance to employees when there is a plant
closing, relocation, or mass layoff; and to repeal certain provisions of
such law relating thereto

 
PURPOSE OR GENERAL IDEA OF BILL:

To strengthen protections during mass layoffs and require severance for
all workers subject to mass layoffs.

 
SUMMARY OF PROVISIONS:

Section 1 amends the definitions section to:

(a) define the term "affiliate";

(b) define the term "associate";

(c) define the term "beneficial owner";

(d) define the term "control";

(e) change the definition of "employment loss" to include workers who
resign in anticipation of a facility closing, relocation or mass layoff;

(f) change the definition of "employer" to include affiliates of the
employer;

(g) define the term "exchange act";

(h) change the definition of "mass layoff" to include employees not
physically stationed at the facility and reduce the employee threshold
test to twenty or more employees;

(i) strike the definition of "part-time employee";

(j) define the term "person"; and

(k) change the definition of "plant closing" by re-titling it "facility
closing", to reduce the employee threshold test to twenty or more
employees, and to eliminate the part-time employee exception.

Section 2 repeals section § 860-b(3) of the labor law which provides an
exemption for calamity, war, or terrorism.

Section 3 conforms certain provisions to recognize the change from the
definition of "plant closing" to "facility closing."

Section 4 eliminates the faltering business, unforeseeability, and
natural disaster exceptions to the notice requirements and associated
liability and penalties for violations. Separate provision is made for
liability relief in section 7 in the event of a natural disaster.

Section 5 amends section 860-d to require that an employer specify an
expected date of recall at the outset of the layoff in order to rely on
the unforeseeability exception with respect to mass layoffs of less than
three months which are extended to more than three months.

Section 6 conforms certain provisions to recognize the change from the
definition of "plant closing" to "facility closing."

Section 7 amends the section heading of section 860-g to include refer-
ence to severance.

Section 8:

(a) removes the sixty-day cap on the number of days of back pay for
which an employer is liable when there is a WARN Act violation;

(b) excludes from the list of payments which reduce an employer's back
pay liability any payments from an employer to a third party or trustee
(such as health benefits or pension benefits);

(c) adds a limited opportunity for employers affected by natural disas-
ters to apply to the department of labor to prove that a violation of
the WARN Act was the direct result of a natural disaster, and provides
that, if the department of labor agrees, the department of labor may, in
its discretion, reduce the amount of liability resulting from the
violation;

(d) provides that the attorney general may enforce provisions of the
WARN Act that establish an employer's liability to employees when there
is a WARN Act violation; and

(e) requires that an employer that must give notice under the WARN Act
shall pay severance to its employees at a rate of one week of pay for
each year of employment, plus an additional four weeks of severance if
the employer fails to give timely notice to its employees, provided
that, if the employer is otherwise required to pay severance to an
employee for any other reason, the employee will receive the greater of:
the amount provided for by this provision, or the amount of severance
otherwise required to be paid, but not both. The four-week severance
liability in the event of a violation is offset by any back pay that is
paid to employees pursuant to the New York WARN Act or the federal WARN
Act.

Section 9 is a severability clause.

Section 10 sets the effective date.

 
JUSTIFICATION:


Over the last few months tech companies, including Google, Amazon, Face-
book, and Microsoft have laid off more than 150,000 workers.' While
these layoffs have been limited to one sector of the economy, they may
portent broader job losses in the future. Layoffs in the tech sector --
coupled with years of economic instability during the COVID-19 pandemic
-- have brought into sharp focus the need for immediate, pragmatic, and
long-term actions to ensure workers are supported by strong economic
safeguards.

Layoffs are emotionally taxing and financially painful events for work-
ers and their families, and can also have significant impacts on the
State, local communities, and other businesses that feel the economic
ripple effects. Recognizing the challenges posed by surprise job losses,
the New York State Worker Adjustment and Retraining Notification (WARN)
Act requires employers with 50 or more employees who plan a mass layoff,
facility shutdown, or relocation to provide 90 calendar days' advance
written notice to affected employees, appropriate labor representatives,
the New York Department of Labor, and certain other relevant government
entities prior to such employment loss. This buffer time period allows
workers to find alternate employment and take other steps to protect
themselves from the imminent financial challenges associated with being
laid off. At a time when workers continue to face difficult times from
the effects of the pandemic and a number of economic challenges, this
financial runway has never been more important. To hold employers to
account when they do not comply with the WARN Act, the statute imposes
penalties and liability for back pay.

Notwithstanding worker protections in the current statute, many mass
layoffs nonetheless result in violations for which employees are not
properly compensated. For instance, current law allows parties with
financial interests in a business to use corporate shields or other
sophisticated legal tactics to avoid some of the obligations of the WARN
Act that fall on the employer, even if those financial actors effec-
tively exercise control over the business.

Such brazen activity has been well-documented over the years in the
private equity industry, but a telling, recent, pre-pandemic example is
the case of the Doral Arrowwood Resort, located in the Village of Rye
Brook. The hotel informed its approximately 275 employees on Christmas
Eve of 2019 that it would be shutting down on January 12, 2020, just 19
days later. These employees, many of whom worked there for decades, were
faced with the prospect of being unemployed and without income in short
order, putting most of them at significant personal financial risk.
Although they were due back pay under the WARN Act, the complicated
nature of the legal proceedings regarding the ownership of the hotel,
and the loopholes and exceptions present in the current statute, allowed
numerous opportunities for the lenders and other financial investors to
challenge workers' WARN Act protections.  While the intricate ownership
and lending structure was being sorted out in a foreclosure proceeding,
the employees were forced to the sidelines, uncertain if they would
receive anything. In a rare but welcome victory, the workers ultimately
won and received their back pay, but that result was held up for nearly
two years by legal wrangling arising out of the shortcomings of the
current WARN Act statute, and many of them suffered further financial
distress due to the compounding effects of the pandemic while waiting
for that compensation.


Frustrations with current law such as these were made worse by COVID-19
and the associated economic difficulties, which created new opportu-
nities for employers to take advantage of a variety of loopholes in the
law to engage in malfeasance and assert spurious justifications to evade
compliance with the WARN Act. For example, these statutory escape hatch-
es exempt employers from the notice requirements by asserting that a
mass layoff was "not reasonably foreseeable." While this was undoubtedly
the case for many businesses when the disaster emergency was first
declared, the pandemic and depressed economy also acted as cover for
employers to layoff workers without sufficient notice and escape their
financial obligations to them.

This bill, similar to reforms signed into law in New Jersey in 2020,
constitutes comprehensive reform to protect private sector workers in
mass layoff situations, and ensures augmented stability and accountabil-
ity as we rebuild our economy. As a centerpiece, this legislation would
require that severance be paid to every laid off worker when there is a
qualifying employment loss under the WARN Act.  Severance payments would
be equal to one week of pay for each year of service, a recognition of
the value of worker loyalty. Many workers in the tech sector have bene-
fited from generous severance packages.  For example, Google will pay at
least 16 weeks of severance, with additional two weeks of pay for each
additional year of employment at Google, to all 12,000 workers being
laid off.2 While these funds do not erase the sting of job loss, they
will give tech workers a cushion as they find a new job. All workers
deserve severance pay when they lose their jobs as part of a mass
layoff. This bill would provide these workers a modicum of financial
protection, in addition to notice requirements, as they navigate job
loss.

Additional progressive, worker-centric changes include broadening the
definition of liable employers, closing easily-exploited loopholes, and
empowering the State to take a more active enforcement role.  These
changes position this legislation as a powerful backstop to ensure more
certain and equitable remedies for workers' lost employment and to hold
culpable corporate actors responsible in mass layoff situations. These
policy changes would also have the ancillary benefit of alleviating some
of the financial burden placed on the State when large numbers of work-
ers are suddenly laid off, a welcome respite for an unemployment assist-
ance program that has been stretched to the breaking point.

The economic reverberations of the COVID-19 pandemic and the resulting
unprecedented unemployment underscored the fragility of many workers'
confirmed that vulnerability. The shortcomings in current law leave room
for the State to provide more stability for workers in a moment when
they most need assurances of economic security, and this bill is part of
the paradigm shift which is necessary to better protect our workers as
the COVID-19 pandemic recedes.

What follows is a more in-depth description of notable policy changes in
this legislation:

 
1. GUARANTEED SEVERANCE.

When a worker decides to continue an employment relationship with a
single employer for a long period of time, that worker forgoes other
opportunities: other jobs, other skills, and other experiences. This can
significantly jeopardize their prospects for any other employment. They
may be seen by new prospective employers as lacking a bright future,
unable to be retrained for a new job, or dismissed in the job market as
"past their prime." A worker that loyally sticks with an employer year
after year makes a sacrifice that should be respected and recognized by
the employer.

Too often, however, this does not happen, especially in the corporate
takeover context. Private equity's "financialization" approach to busi-
ness frequently involves taking control of companies only to then effect
layoffs and closures that are financially engineered to result in inves-
tor profits at workers' expense. Imposing a severance requirement will
have both a deterrent effect on financially engineered layoffs, and
provide additional compensation to workers who suffer job losses as a
result.

Regardless of the context, business closures and mass layoffs necessar-
ily entail widespread and enormous disruption of workers' lives and
livelihoods. Because traditional unemployment assistance only pays a
portion of a worker's typical wages, it does not function as a true
income replacement for workers who, through no fault of their own, lose
the job that allows them to meet their expenses. For those who struggle
to put food on the table and make rent even before being laid off, full
severance pay can be the difference when it comes to surviving until new
employment can be found.

 
2. ELIMINATING DEPARTMENT OF LABOR DISCRETION TO REDUCE EMPLOYER BACK
PAY LIABILITY.

Current law allows an employer the opportunity to prove to the Depart-
ment of Labor that a WARN Act violation was in good faith and that the
employer had reasonable grounds for believing that its actions or omis-
sions did not constitute a violation. If the Department of Labor is
convinced that such an argument has merit, it may reduce the liability
of the employer to its workers.

This provision is contrary to the goal of protecting workers embodied by
the WARN Act and should be removed. Whether the violation was in good
faith or bad faith, the workers still suffer the same harm and therefore
should still receive the same compensation.

The bill does leave intact this exception with respect to fines by the
Department of Labor for violations, as these fines are separate and
apart from an employer's liability to its employees for back pay.

 
3. ELIMINATING THE FALTERING BUSINESS AND OF FORESEEABILITY EXCEPTIONS;
REFORMING THE NATURAL DISASTER EXCEPTION.

In the context of the WARN Act, a business should not be exempt from
liability for back pay in the case of a facility closing because the
business was faltering and trying to find funding at the time when
notice was required. The same applies for unforeseeable events. In
neither case is the harm to the worker reduced. Such provisions encour-
age disproportionate distribution of remaining resources to investors
and other financially interested parties, despite the fact that such
parties are more likely to be able to bear the financial impact of an
unfavorable business situation. The workers likely have only this one
job, which is often their sole source of income. When weighing these
competing interests, it is proper to support those who are at the great-
est disadvantage, and for that reason these exceptions should be
removed.

Understanding that certain natural disasters are sudden and unavoidable,
but that there should be a nexus of causation between the disaster and
layoffs in order for relief from liability to apply, the blanket natural
disaster exception has been replaced by a process for employers to apply
to the Department of Labor for relief from liability due to violations
directly caused by a natural disaster.

 
4. REVISE THE DEFINITION OF "EMPLOYER" TO INCLUDE BUSINESS AFFILIATES
AND CONTROLLING INVESTORS AND LENDERS.

Liability in WARN Act situations falls on the employer. Accordingly,
strategic financial actors sometimes seek to escape WARN Act liability
by setting up corporate shields in a variety of multiple-entity owner-
ship structures, exerting financial pressure without formally establish-
ing management control, shifting significant debt to the business, and
other financial or legal maneuvers to avoid being categorized as the
"employer" under the WARN Act. By expanding this definition to include
those entities that exert indirect control or make decisions that ulti-
mately lead to the mass layoff, relocation, or facility closing, this
legislation deters some of the tactics used to escape the legal obli-
gation to pay workers when there is a violation.

 
5. EXTEND THE REACH OF THE WARN ACT.

Currently, the WARN Act only applies to employers that have 50 full-time
employees, or in the alternate, employees working, in the aggregate, at
least 2,000 hours per week. Whether an employee is part-time or full-
time, and how many total hours of employee work done for an employer
does not change the basic premise that an employee has an employment
relationship with the employer, and it may be the only job they have.
This bill recognizes this circumstance in the context of the WARN Act by
capturing those employers who would otherwise have WARN Act duties but
for the fact that their 50 or more employees do not collectively work 50
forty-hour weeks. By broadening the definition of "employee," and by
lowering the threshold for applicability, the WARN Act will cover many
more businesses than it does now, and thereby protect many more workers.

In addition, changes to the definition of "mass layoff" simplify the
determination for what is a mass layoff by reducing it to a twenty-em-
ployee test. Currently, a mass layoff involves a situation in which a
facility does not close down, but (i) at least 33% of the workforce
(which must constitute 25 or more employees) is laid off, or (ii) 250 or
more employees are laid off. For example, an employer of 70 employees
could lay off 24 employees--more than one-third of its workforce--and
yet not satisfy the test of a mass layoff. Perhaps more dramatic is a
situation in which a very large employer (750 employees or more) could
lay off up to 249 employees without such situation constituting a mass
layoff.

As a final matter, this bill clarifies that many workers that are not
necessarily stationed at a particular job site nonetheless have their
employment tied to its operations, and may lose their job as a conse-
quence.


 
6. EXTEND THE MAXIMUM PERIOD OF LIABILITY TO THE FULL 90-DAY NOTICE
PERIOD.

Although the New York State WARN Act requires employers to provide at
least 90 days of notice prior to a mass layoff, relocation, or employ-
ment loss, an employer's back pay liability to its workers for a
violation is currently limited to only 60 days. As a result, workers
receive the same back pay whether the notice is 60 days late or 90 days
late. This results in a perverse situation in which an employer has much
less incentive to give any notice at all if it plans a mass layoff,
relocation, or employment loss within 30 days.  The civil penalty of
$500 per day for 30 days ($15,000 total) is a pittance to many employ-
ers, even those in enough financial trouble to consider a workforce
reduction.

Of more practical importance to the workers in many situations is the
fact that they are suddenly without a paycheck, and therefore without a
means to make rent, feed their families, or pay their medical bills. In
this context, while an additional 30 days of violation means little
financially to the employer under current law, those 30 days are crit-
ical to a worker who needs to immediately find a new job, especially
because this issue only occurs in circumstances in which notice is given
less than 30 days from the date on which the worker will be laid off.
With such limited time to find new employment, every day counts.

By extending the number of days of back pay for which an employer is
liable to the full 90-day notice period, this bill will eliminate the
current mismatch of incentives by linking the employer's financial
liability for back pay to the full period of violation, thereby encour-
aging employers to give as much notice as possible at a time when it is
arguably most crucial to their workers.

 
7. EXPLICIT ATTORNEY GENERAL ENFORCEMENT OF BACK PAY LIABILITY.

One of the most significant barriers to workers receiving the back pay
they are due in WARN Act situations is that the employer is in financial
trouble, and a number of more organized claimants with greater resources
(e.g. banks) are also vying for what value remains in the business.
Currently, while the workers, labor representatives, and local munici-
palities can bring an action and the Department of Labor can use admin-
istrative proceedings to address the issue of back pay, the Attorney
General does not have express authority to step in to enforce the law to
protect workers. Because the scales are tilted against the workers in
this way, the state should be, given all the tools it needs to move
expeditiously in order to enforce workers' rights to back pay.

 
PRIOR LEGISLATIVE HISTORY:

S4845A (2021-2022): Referred to Labor; combines elements of S8562 of
2020 and S8377 of 2020, both of which were referred to Labor.

 
FISCAL IMPLICATIONS:

Potential savings from reduced unemployment assistance claims.

 
EFFECTIVE DATE:
This act shall take effect immediately.
1https://www.washingtonpost.com/technology/2023/02/02/google-meta-
layoffs-sanfrancisco/
2https://www.businessinsidencom/tech-layoffs-meta-twitter-lvft-stripe-
severance-packaae-compensation-2
022-11 google-is-paying-16-weeks-of-severance-at-minimum-and-all-remaini
ng-vacation-time-2

2023-S5617 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5617
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               March 8, 2023
                                ___________
 
 Introduced  by  Sens.  MAYER,  CLEARE, COMRIE, GOUNARDES, HOYLMAN-SIGAL,
   JACKSON, KENNEDY, MAY, MYRIE,  RAMOS,  SEPULVEDA  --  read  twice  and
   ordered  printed, and when printed to be committed to the Committee on
   Labor
 
 AN ACT to amend the labor law, in relation to removing the exclusion  of
   part-time  employees  from  certain definitions relating to employment
   and expanding the definition of employer; removing certain  exclusions
   for employer notice requirements for the closing of a facility; remov-
   ing the discretionary reduction of penalties for employers for certain
   acts  or  omissions  concerning  notice requirements for mass layoffs,
   relocations or employment loss; removing the maximum time  period  for
   determining   back pay and other liabilities for certain employees who
   experience employment loss; allowing  the  attorney  general  to  take
   certain  action  to assist certain employees in receiving back pay and
   other liabilities; requiring employers to pay severance  to  employees
   when  there  is  a  plant  closing, relocation, or mass layoff; and to
   repeal certain provisions of such law relating thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 860-a of the labor law, as added by chapter 475 of
 the laws of 2008, is amended to read as follows:
   § 860-a. Definitions. As used in this  article,  the  following  terms
 shall have the following meanings:
   1. "Affected employees" means employees who may reasonably be expected
 to  experience an employment loss as a consequence of a proposed [plant]
 FACILITY closing or mass layoff by their employer.
   2. "AFFILIATE" MEANS A PERSON THAT DIRECTLY, OR INDIRECTLY THROUGH ONE
 OR MORE INTERMEDIARIES, CONTROLS, OR  IS  CONTROLLED  BY,  OR  IS  UNDER
 COMMON CONTROL WITH, A SPECIFIED PERSON.
   3.  "ASSOCIATE", WHEN USED TO INDICATE A RELATIONSHIP WITH ANY PERSON,
 MEANS:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01691-02-3

 S. 5617                             2
 
   (A) ANY ENTITY OF WHICH SUCH PERSON IS AN OFFICER OR  PARTNER  OR  IS,
 DIRECTLY  OR  INDIRECTLY, THE BENEFICIAL OWNER OF TEN PERCENT OR MORE OF
 ANY CLASS OF VOTING SECURITIES;
   (B)  ANY  TRUST OR OTHER ESTATE IN WHICH SUCH PERSON HAS A SUBSTANTIAL
 BENEFICIAL INTEREST OR AS TO WHICH SUCH PERSON SERVES AS TRUSTEE OR IN A
 SIMILAR FIDUCIARY CAPACITY; AND
   (C) ANY RELATIVE OR SPOUSE OF SUCH PERSON, OR  ANY  RELATIVE  OF  SUCH
 SPOUSE, WHO HAS THE SAME HOME AS SUCH PERSON.
   4. "BENEFICIAL OWNER", WHEN USED WITH RESPECT TO ANY SECURITIES, MEANS
 A PERSON:
   (A)  THAT,  INDIVIDUALLY  OR  WITH OR THROUGH ANY OF ITS AFFILIATES OR
 ASSOCIATES, BENEFICIALLY OWNS SUCH SECURITIES, DIRECTLY  OR  INDIRECTLY;
 OR
   (B)  THAT,  INDIVIDUALLY  OR  WITH OR THROUGH ANY OF ITS AFFILIATES OR
 ASSOCIATES, HAS (I) THE RIGHT TO ACQUIRE SUCH SECURITIES,  WHETHER  SUCH
 RIGHT  IS  EXERCISABLE  IMMEDIATELY  OR  ONLY AFTER THE PASSAGE OF TIME,
 PURSUANT TO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING, WHETHER OR  NOT
 IN  WRITING, OR UPON THE EXERCISE OF CONVERSION RIGHTS, EXCHANGE RIGHTS,
 WARRANTS OR OPTIONS, OR OTHERWISE; OR (II) THE RIGHT TO VOTE SUCH  SECU-
 RITIES  PURSUANT TO ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING, WHETHER
 OR NOT IN WRITING; PROVIDED, HOWEVER, THAT A PERSON SHALL NOT BE  DEEMED
 THE  BENEFICIAL  OWNER  OF ANY SECURITIES UNDER THIS SUBPARAGRAPH IF THE
 AGREEMENT, ARRANGEMENT OR UNDERSTANDING  TO  VOTE  SUCH  SECURITIES  (1)
 ARISES  SOLELY  FROM A REVOCABLE PROXY OR CONSENT GIVEN IN RESPONSE TO A
 PROXY OR CONSENT SOLICITATION MADE IN  ACCORDANCE  WITH  THE  APPLICABLE
 RULES AND REGULATIONS UNDER THE EXCHANGE ACT AND (2) IS NOT THEN REPORT-
 ABLE  ON  A  SCHEDULE  13D  UNDER THE EXCHANGE ACT, OR ANY COMPARABLE OR
 SUCCESSOR REPORT; OR
   (C) THAT HAS ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING,  WHETHER  OR
 NOT  IN  WRITING,  FOR THE PURPOSE OF ACQUIRING, HOLDING, VOTING, EXCEPT
 VOTING PURSUANT TO A REVOCABLE PROXY OR CONSENT AS DESCRIBED IN SUBPARA-
 GRAPH (II) OF PARAGRAPH (B) OF THIS SUBDIVISION, OR  DISPOSING  OF  SUCH
 SECURITIES WITH ANY OTHER PERSON THAT BENEFICIALLY OWNS, OR WHOSE AFFIL-
 IATES OR ASSOCIATES BENEFICIALLY OWN, DIRECTLY OR INDIRECTLY, SUCH SECU-
 RITIES.
   5.  "CONTROL",  INCLUDING THE TERMS "CONTROLLING", "CONTROLLED BY" AND
 "UNDER COMMON CONTROL WITH", MEANS THE POSSESSION, DIRECTLY OR INDIRECT-
 LY, OF THE POWER TO DIRECT OR CAUSE THE DIRECTION OF (A) THE  MANAGEMENT
 AND POLICIES OF A PERSON, (B) THE OPERATION OF A PERSON, OR (C) SUBSTAN-
 TIALLY  ALL  OF THE ASSETS OF A PERSON, WHETHER THROUGH THE OWNERSHIP OF
 VOTING SECURITIES, BY CONTRACT,  OR  OTHERWISE.  A  PERSON'S  BENEFICIAL
 OWNERSHIP OF TEN PERCENT OR MORE OF AN ENTITY'S OUTSTANDING VOTING SECU-
 RITIES  SHALL  CREATE A PRESUMPTION THAT SUCH PERSON HAS CONTROL OF SUCH
 ENTITY.  NOTWITHSTANDING THE FOREGOING, A PERSON SHALL NOT BE DEEMED  TO
 HAVE  CONTROL  OF  AN  ENTITY IF SUCH PERSON HOLDS VOTING SECURITIES, IN
 GOOD FAITH AND NOT FOR THE PURPOSE OF CIRCUMVENTING THIS SECTION, AS  AN
 AGENT, BANK, BROKER, NOMINEE, CUSTODIAN OR TRUSTEE FOR ONE OR MORE BENE-
 FICIAL OWNERS WHO DO NOT INDIVIDUALLY OR AS A GROUP HAVE CONTROL OF SUCH
 ENTITY.
   6. "Employment loss" means:
   (a)  an  employment  termination,  other  than  a discharge for cause,
 voluntary departure OTHER THAN IN ANTICIPATION OF AN ANNOUNCED  FACILITY
 CLOSING OR MASS LAYOFF, or retirement;
   (b) a mass layoff exceeding [six] THREE months;
   (c)  a  reduction  in  hours of work of more than fifty percent during
 each month of any consecutive [six-month] THREE-MONTH period.
 S. 5617                             3
 
   "Employment loss" shall not result under circumstances where a [plant]
 FACILITY closing or mass layoff is  the  result  of  the  relocation  or
 consolidation  of part or all of the employer's business and, before the
 closing or mass layoff, the employer offers to transfer the employee  to
 a  different  site  of employment within a reasonable commuting distance
 with no more than a [six-month] THREE-MONTH break in employment, or  the
 employer  offers  to  transfer the employee to any other site of employ-
 ment, regardless of distance, with no more  than  a  [six-month]  THREE-
 MONTH  break  in employment, and the employee accepts within thirty days
 of the offer or of the closing or mass layoff, whichever is later.
   [3.] 7. "Employer" means any business enterprise that employs fifty or
 more employees[, excluding part-time employees, or fifty or more employ-
 ees that work in the aggregate at least two thousand  hours  per  week].
 "EMPLOYER"  SHALL INCLUDE ANY AFFILIATE OF AN EMPLOYER. "Employer" shall
 not include the federal or state government or any  of  their  political
 subdivisions,  including  any  unit  of  local  government or any school
 district.
   [4.] 8. "EXCHANGE ACT" MEANS THE ACT OF CONGRESS KNOWN AS THE  SECURI-
 TIES  EXCHANGE  ACT  OF  1934,  AS THE SAME HAS BEEN OR HEREAFTER MAY BE
 AMENDED FROM TIME TO TIME.
   9. "Mass layoff" means a reduction in force which:
   (a) is not the result of a [plant] FACILITY closing; and
   (b) results in an employment loss FOR THOSE WORKING at OR REPORTING TO
 a single site of employment during any thirty-day period for[:
   (i) at least thirty-three percent of the  employees  (excluding  part-
 time employees); and
   (ii)  at  least twenty-five employees (excluding part-time employees);
 or
   (iii) at  least  two  hundred  fifty  employees  (excluding  part-time
 employees)] TWENTY OR MORE EMPLOYEES.
   [5.  "Part-time  employee"  means  an  employee who is employed for an
 average of fewer than twenty hours per week or who has been employed for
 fewer than six of the twelve months preceding the date on  which  notice
 is required.
   6.  "Plant]  10.  "FACILITY  closing" means the permanent or temporary
 shutdown of a single site of employment, or one or  more  facilities  or
 operating  units  within  a  single  site of employment, if the shutdown
 results in an employment loss at the single site  of  employment  during
 any thirty-day period for [twenty-five] TWENTY or more employees [(other
 than part-time employees)].
   [7.] 11. "Representative" means an exclusive representative within the
 meaning  of section 9(a) or 8(f) of the National Labor Relations Act (29
 U.S.C.  159(a), 158(f)) or section 2 of the Railway Labor Act (45 U.S.C.
 152).
   [8.] 12. "Relocation" means the removal of all or substantially all of
 the industrial or commercial operations of an employer  to  a  different
 location fifty miles or more away.
   13.  "PERSON"  MEANS  ANY INDIVIDUAL, PARTNERSHIP, ASSOCIATION, CORPO-
 RATION, COOPERATIVE, LIMITED LIABILITY COMPANY, FIRM,  TRUST,  OR  OTHER
 ENTITY.
   § 2. Subdivision 3 of section 860-b of the labor law is REPEALED.
   §  3. Subdivisions 5 and 7 of section 860-b of the labor law, as added
 by chapter 475 of the laws of 2008, are amended to read as follows:
   5. In the case of a sale of part or all of an employer's business, the
 seller shall be responsible for providing notice for any [plant] FACILI-
 TY closing or mass layoff in accordance with this  section,  up  to  and
 S. 5617                             4
 
 including  the  effective  date of the sale. After the effective date of
 the sale of part or all of an employer's business, the  purchaser  shall
 be  responsible for providing notice for any [plant] FACILITY closing or
 mass  layoff  in accordance with this section. Notwithstanding any other
 provision of this article, any person who is an employee of  the  seller
 as  of the effective date of the sale shall be considered an employee of
 the purchaser immediately after the effective date of the sale.
   7. Nothing set forth herein shall be read to prevent an  employer  who
 is  not required to comply with the notice requirements of this section,
 to the extent possible, to provide  notice  to  its  employees  about  a
 proposal  to  close  a  [plant] FACILITY or permanently reduce its work-
 force.
   § 4. Subdivision 1 of section 860-c of the  labor  law,  as  added  by
 chapter 475 of the laws of 2008, is amended to read as follows:
   1.  In  the  case  of  a  [plant]  FACILITY closing OR MASS LAYOFF, an
 employer is not required to comply with the notice requirement in subdi-
 vision one of section eight hundred sixty-b of this article if:
   (a)[(i) at the time the notice would have been required, the  employer
 was actively seeking capital or business; and
   (ii)  the  capital or business sought, if obtained, would have enabled
 the employer to avoid or postpone the relocation or termination; and
   (iii) the employer reasonably and in good faith believed  that  giving
 the  notice required by subdivision one of section eight hundred sixty-b
 of this article would have precluded the  employer  from  obtaining  the
 needed capital or business;
   (b)  the  need for a notice was not reasonably foreseeable at the time
 the notice would have been required;
   (c)] the [plant] FACILITY closing is of a temporary  facility  or  the
 [plant]  FACILITY closing or mass layoff is the result of the completion
 of a particular project or undertaking, and the affected employees  were
 hired  with  the  understanding that their employment was limited to the
 duration of the facility or project or undertaking;
   [(d) the plant closing or mass layoff is due to any  form  of  natural
 disaster, such as a flood, earthquake, or drought; or
   (e)]  (B)  the FACILITY closing or mass layoff constitutes a strike or
 constitutes a lockout not intended to evade  the  requirements  of  this
 article.  Nothing  in  this  article  shall require an employer to serve
 written notice when permanently replacing a person who is deemed  to  be
 an  economic  striker  under the National Labor Relations Act (29 U.S.C.
 151 et seq.). Nothing in this article shall be  deemed  to  validate  or
 invalidate  any judicial or administrative ruling relating to the hiring
 of permanent replacements for economic strikers under the National Labor
 Relations Act.
   § 5. Section 860-d of the labor law, as added by chapter  475  of  the
 laws of 2008, is amended to read as follows:
   §  860-d. Extension of mass layoff period.  A mass layoff of more than
 [six] THREE months which, at its outset, was  announced  to  be  a  mass
 layoff  of [six] THREE months or less WITH AN ANNOUNCED EXPECTED DATE OF
 RECALL shall be treated as an employment loss under this article unless:
   1. the extension beyond [six]  THREE  months  is  caused  by  business
 circumstances  (including  unforeseeable  changes  in price or cost) not
 reasonably foreseeable at the time of the initial mass layoff; and
   2. notice is given at the time it becomes reasonably foreseeable  that
 the extension beyond [six] THREE months will be required.
   §  6.  Section  860-e of the labor law, as added by chapter 475 of the
 laws of 2008, is amended to read as follows:
 S. 5617                             5
 
   § 860-e. Determinations with respect to employment loss. In  determin-
 ing  whether  a  [plant] FACILITY closing or mass layoff has occurred or
 will occur, employment losses for two or more groups of employees  at  a
 single site of employment, each of which is less than the minimum number
 of employees specified in [subdivisions four or six] SUBDIVISION NINE OR
 TEN  of  section  eight hundred sixty-a of this article but which in the
 aggregate meet or exceed that minimum number set forth in such  subdivi-
 sions,  and which occur within any ninety-day period shall be considered
 to be a [plant] FACILITY closing or  mass  layoff  unless  the  employer
 demonstrates  that  the employment losses are the result of separate and
 distinct actions and causes and are not an attempt by  the  employer  to
 evade the requirements of this article.
   §  7.  The section heading of section 860-g of the labor law, as added
 by chapter 475 of the laws of 2008, is amended to read as follows:
   Violation; liability; SEVERANCE.
   § 8. Subdivisions 2, 4, 6 and 8 of section 860-g of the labor law,  as
 added by chapter 475 of the laws of 2008, are amended and two new subdi-
 visions 9 and 10 are added to read as follows:
   2.  Back  pay and other liability under this section is calculated for
 the period of the employer's violation, [up to a maximum of sixty days,]
 or one-half the number of days that the employee  was  employed  by  the
 employer, whichever period is smaller.
   4. The amount of an employer's liability under subdivision one of this
 section, shall be reduced by the following:
   (a) Any wages, except vacation moneys accrued before the period of the
 employer's  violation,  paid  by the employer to the employee during the
 period of the employer's violation.
   (b) Any voluntary and unconditional payments made by the  employer  to
 the employee that were not required to satisfy any legal obligation.
   (c)  Any payments by the employer to a third party or trustee, such as
 premiums for health benefits  or  payments  to  a  defined  contribution
 pension  plan,  on  behalf  of  and attributable to the employee for the
 period of the violation.
   (d) Any liability paid by the employer under  any  applicable  federal
 law  governing  notification of mass layoffs, [plant] FACILITY closings,
 or relocations.
   (e) In an administrative proceeding by the commissioner, any liability
 paid by the employer prior to the commissioner's  determination  as  the
 result of a private action brought under this article.
   (f) In a private action brought under this article, any liability paid
 by  the  employer  in  an  administrative proceeding by the commissioner
 prior to the adjudication of such private action.
   6. [If an employer proves to the satisfaction of the commissioner that
 the act or omission that violated this article was  in  good  faith  and
 that  the  employer had reasonable grounds for believing that the act or
 omission was not a violation of this article, the commissioner  may,  in
 his  or  her  discretion, reduce the amount of liability provided for in
 this section. In determining the amount of such reduction,  the  commis-
 sioner  shall  consider  (a) the size of the employer; (b) the hardships
 imposed on employees by the violation; (c) any efforts by  the  employer
 to  mitigate  the  violation;  and  (d)  the  grounds for the employer's
 belief.]
   (A) WITHIN THIRTY DAYS AFTER A NATURAL  DISASTER,  SUCH  AS  A  FLOOD,
 EARTHQUAKE,  OR DROUGHT, AN EMPLOYER MAY MAKE APPLICATION TO THE COMMIS-
 SIONER FOR A REDUCTION IN LIABILITY IMPOSED UNDER THIS ARTICLE. IF  SUCH
 EMPLOYER  PROVES, TO THE SATISFACTION OF THE COMMISSIONER, THAT THE MASS
 S. 5617                             6
 
 LAYOFF, RELOCATION OR EMPLOYMENT LOSS OUT OF WHICH LIABILITY AROSE WAS A
 DIRECT RESULT OF SUCH NATURAL DISASTER, THE COMMISSIONER MAY, IN HIS  OR
 HER  DISCRETION,  REDUCE ANY LIABILITY WITH RESPECT TO SUCH MASS LAYOFF,
 RELOCATION  OR  EMPLOYMENT  LOSS PROVIDED FOR IN THIS ARTICLE, INCLUDING
 THE SEVERANCE OBLIGATIONS PROVIDED BY SUBDIVISION TEN OF  THIS  SECTION.
 IN  DETERMINING  THE  AMOUNT OF ANY APPROVED REDUCTION, THE COMMISSIONER
 SHALL CONSIDER:(I) THE SIZE OF THE EMPLOYER; (II) THE HARDSHIPS  IMPOSED
 ON EMPLOYEES BY ANY AND ALL VIOLATIONS; (III) ANY EFFORTS BY THE EMPLOY-
 ER  TO MITIGATE ANY VIOLATION OR VIOLATIONS AND ANY REDUCTION IN LIABIL-
 ITY TO EMPLOYEES; AND (IV) THE DEGREE OF HARM CAUSED TO THE EMPLOYER AND
 THE EMPLOYEES BY THE NATURAL DISASTER.
   (B) ANY AGGRIEVED EMPLOYEE OF AN EMPLOYER MAKING APPLICATION  PURSUANT
 TO  PARAGRAPH  (A) OF THIS SUBDIVISION SEEKING TO CHALLENGE THE DETERMI-
 NATION OF THE COMMISSIONER MAY BRING A CIVIL ACTION ON THEIR OWN BEHALF,
 OR ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED, OR BOTH, IN ANY  COURT
 OF  COMPETENT  JURISDICTION,  WITHIN THE TIME PERIOD PROVIDED BY SECTION
 TWO HUNDRED THIRTEEN OF THE CIVIL PRACTICE LAW AND RULES. THE COURT  MAY
 AWARD  REASONABLE  ATTORNEY'S FEES AS PART OF COSTS TO ANY PLAINTIFF WHO
 PREVAILS IN A CIVIL ACTION BROUGHT UNDER THIS ARTICLE.
   8. Neither the commissioner nor any court shall have the authority  to
 enjoin a [plant] FACILITY closing, relocation, or mass layoff under this
 article;  PROVIDED,  HOWEVER, WHENEVER AN EMPLOYER IS LIABLE PURSUANT TO
 SUBDIVISION ONE OF THIS SECTION, APPLICATION MAY BE MADE BY THE ATTORNEY
 GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR
 JUSTICE HAVING JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN  INJUNC-
 TION,  AND  UPON  NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO
 ENJOIN AND RESTRAIN THE ACTIONS OF SUCH  EMPLOYER  OR  TAKE  SUCH  OTHER
 ACTIONS  THE  ATTORNEY  GENERAL  MAY  DEEM  APPROPRIATE  TO  ENFORCE THE
 PROVISIONS OF SUBDIVISION ONE OF THIS SECTION.  IN CONNECTION  WITH  ANY
 SUCH  PROPOSED  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE
 PROOF AND MAKE A DETERMINATION  OF  THE  RELEVANT  FACTS  AND  TO  ISSUE
 SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   9.  NO  WAIVERS  OF  LIABILITY UNDER THIS ARTICLE SHALL BE ENFORCEABLE
 UNLESS SUPERVISED BY A COURT, THE COMMISSIONER OR CERTIFIED CLASS  COUN-
 SEL.
   10.  WHENEVER  THERE  IS  A  PLANT CLOSING, RELOCATION, OR MASS LAYOFF
 UNDER THIS ARTICLE, THE EMPLOYER SHALL PAY SEVERANCE  TO  EACH  EMPLOYEE
 ENTITLED  TO  NOTICE WHO LOST HIS OR HER EMPLOYMENT EQUAL TO ONE WEEK OF
 PAY FOR EACH FULL YEAR OF EMPLOYMENT. AN  EMPLOYER  WHO  FAILS  TO  GIVE
 NOTICE  AS REQUIRED BY PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION EIGHT
 HUNDRED SIXTY-B OF THIS ARTICLE BEFORE ORDERING  A  MASS  LAYOFF,  RELO-
 CATION,  OR  EMPLOYMENT  LOSS SHALL PAY EACH SUCH EMPLOYEE AN ADDITIONAL
 FOUR WEEKS OF SEVERANCE PAY. THE RATE OF SEVERANCE PAY PROVIDED  BY  THE
 EMPLOYER  PURSUANT  TO THIS SECTION SHALL BE THE AVERAGE REGULAR RATE OF
 COMPENSATION RECEIVED BY THE EMPLOYEE DURING THE  LAST  THREE  YEARS  OF
 EMPLOYMENT  WITH  THE  EMPLOYER, OR THE EMPLOYEE'S FINAL REGULAR RATE OF
 COMPENSATION, WHICHEVER IS  HIGHER.  SEVERANCE  UNDER  THIS  SUBDIVISION
 SHALL  BE REGARDED AS COMPENSATION DUE TO AN EMPLOYEE FOR LOSSES ASSOCI-
 ATED WITH THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP, AND EARNED  IN
 FULL  UPON THE TERMINATION OF THE EMPLOYMENT RELATIONSHIP, NOTWITHSTAND-
 ING THE CALCULATION OF THE AMOUNT OF THE PAYMENT WITH REFERENCE  TO  THE
 EMPLOYEE'S  LENGTH  OF SERVICE. THE EMPLOYER SHALL PAY THE SEVERANCE PAY
 REQUIRED PURSUANT TO THIS SUBDIVISION OR THE SEVERANCE PAY REQUIRED BY A
 COLLECTIVE BARGAINING AGREEMENT OR FOR ANY OTHER  REASON,  WHICHEVER  IS
 GREATER.  THE  FOUR  WEEKS  OF SEVERANCE PAY PROVIDED FOR AN EMPLOYEE BY
 THIS SUBDIVISION IN THE EVENT OF A FAILURE TO GIVE NOTICE AS REQUIRED BY
 S. 5617                             7
 
 PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION  EIGHT  HUNDRED  SIXTY-B  OF
 THIS  ARTICLE  SHALL  BE  REDUCED  BY  ANY BACK PAY PAID TO THE EMPLOYEE
 PURSUANT TO THIS SECTION OR SUBSECTION 5 OF SECTION 2104 OF THE  FEDERAL
 WORKER  ADJUSTMENT AND RETRAINING NOTIFICATION ACT (29 U.S.C.  SEC. 2104
 ET SEQ.), BECAUSE OF A VIOLATION OF SUBSECTION 3 OF SECTION 2102 OF SUCH
 ACT (29 U.S.C. SEC. 2102 ET SEQ.). NO WAIVER OF THE RIGHT  TO  SEVERANCE
 PROVIDED  PURSUANT  TO  THIS  SUBDIVISION  SHALL  BE  EFFECTIVE  WITHOUT
 APPROVAL OF THE WAIVER BY THE  COMMISSIONER  OR  A  COURT  OF  COMPETENT
 JURISDICTION.
   §  9.  Severability. If any provision or application of this act shall
 be held to be invalid, or to violate or be inconsistent with any  appli-
 cable  federal law or regulation, that shall not affect other provisions
 or applications of this act which  can  be  given  effect  without  that
 provision  or  application; and to that end, the provisions and applica-
 tions of this act are severable.
   § 10. This act shall take effect immediately.

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