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This entry was published on 2014-09-22
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SECTION 860-G
Violation; liability
Labor (LAB) CHAPTER 31, ARTICLE 25-A
§ 860-g. Violation; liability. 1. 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, relocation, or
employment loss is liable to each employee entitled to notice who lost
his or her employment for:

(a) Back pay at the average regular rate of compensation received by
the employee during the last three years of his or her employment, or
the employee's final rate of compensation, whichever is higher.

(b) The value of the cost of any benefits to which the employee would
have been entitled had his or her employment not been lost, including
the cost of any medical expenses incurred by the employee that would
have been covered under an employee benefit plan.

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.

3. Payments to an employee under this section by an employer who has
failed to provide the advance notice of a facility closure required by
this article or the federal Worker Adjustment and Retraining
Notification Act (29 U.S.C. Sec. 1201 et seq.) shall not be construed as
remuneration under article eighteen of this chapter. Unemployment
insurance benefits under article eighteen of this chapter may not be
denied or reduced because of the receipt of payments related to an
employer's violation of this article or the federal Worker Adjustment
and Retraining Notification Act.

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 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.

5. Any liability incurred by an employer under subdivision one of this
section with respect to a defined benefit pension plan may be reduced by
crediting the employee with service for all purposes under such a plan
for the period of the violation.

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
commissioner 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.

7. An aggrieved employee, local government, or an employee
representative seeking to establish liability against an employer may
bring a civil action on behalf of the person, 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 attorneys' fees
as part of costs to any plaintiff who prevails in a civil action brought
under this article. If the court determines that an employer conducted a
reasonable investigation in good faith, and had reasonable grounds to
believe that its conduct was not a violation of this article, the court
may reduce the amount of any penalty it would otherwise impose against
the employer under this article.

8. Neither the commissioner nor any court shall have the authority to
enjoin a plant closing, relocation, or mass layoff under this article.