New York’s Worker Adjustment and Retraining Notification Act, usually called the WARN Act, sets the advance-notice rules a covered employer must follow before a large layoff or shutdown. It is one of the statutes covered in New York employment law: at-will rules, pay, and rights. This article explains which employers are covered, what events trigger notice, how much notice the law requires, who must receive it, when a shorter period is allowed, and what an employer owes for failing to comply.
Which employers the New York WARN Act covers
The Act reaches private employers above a size threshold. Under N.Y. Labor Law § 860-a, an “employer” is any business enterprise that employs 50 or more employees, excluding part-time employees, or 50 or more employees who together work at least 2,000 hours per week. Federal, state, and local government entities are not covered.
A part-time employee, for counting purposes, is someone who works an average of fewer than 20 hours per week, or who has been employed for fewer than 6 of the 12 months before notice is due. Part-time workers do not count toward the 50-employee threshold, although the Act still protects them once an employer is covered.
This 50-employee threshold is the first place New York parts ways with federal law. The federal WARN Act reaches only employers with 100 or more employees. A New York business with 60 workers can fall under the state Act while remaining outside the federal one.
What triggers notice: closings, layoffs, and relocations
Three events trigger the notice requirement, each defined by a headcount in N.Y. Labor Law § 860-a.
A plant closing is the permanent or temporary shutdown of a single site of employment, or of one or more facilities or operating units within a site, that causes an employment loss for 25 or more employees (not counting part-time employees) during any 30-day period.
A mass layoff, defined in the same section of N.Y. Labor Law § 860-a, is a reduction in force that is not a plant closing and that causes an employment loss at a single site during any 30-day period for either at least 33% of the employees together with at least 25 employees, or at least 250 employees on its own. Part-time employees are excluded from both counts.
A relocation is the removal of all or substantially all of an employer’s industrial or commercial operations to a different location 50 miles or more away.
The same statute defines “employment loss” so the counts stay consistent, in N.Y. Labor Law § 860-a. It means a termination other than for cause, a voluntary departure, or retirement; a layoff lasting more than six months; or a cut of more than 50% in work hours in each month of a six-month period. An offer to transfer a worker to a nearby site, or to another site that the worker accepts within 30 days, can keep the loss from counting.
How much notice is required and who must receive it
A covered employer may not order a mass layoff, relocation, or covered employment loss unless it gives written notice at least 90 days beforehand, under N.Y. Labor Law § 860-b. Every reference to “days” in the Act means calendar days.
Notice does not go only to workers. The statute names five categories of recipients.
Affected employees and their representatives
Every employee who may reasonably be expected to lose employment, along with any union or other exclusive representative of those employees, must receive written notice. Mailing to the last known address by first-class or certified mail, or including the notice in a paycheck, satisfies the obligation to each individual employee.
The New York State Department of Labor
The employer must notify the New York State Department of Labor, which administers the Act and collects the notices it receives before making them available to the public.
The local workforce investment board
Notice goes to the local workforce board for the area where the layoff or closing will occur, so reemployment and retraining services can be organized for displaced workers.
Local government and school officials
The chief elected official of each affected unit of local government, and each affected school district, must be notified.
Local emergency service providers
Each locality that provides police, firefighting, emergency medical, ambulance, or other emergency services to the site must receive notice as well.
The notice itself must include the content elements required by the federal WARN Act, which the state statute incorporates by reference.
When shorter notice is allowed
The 90-day period can be shortened in the specific circumstances set out in N.Y. Labor Law § 860-c. In a plant closing, an employer that was actively seeking capital or business, and reasonably believed that giving notice would have jeopardized obtaining it, may give reduced notice under the “faltering company” exception. Reduced notice is also available when the need for notice was not reasonably foreseeable, when the closing involves a temporary facility or the completion of a defined project whose workers understood the limited term, when a natural disaster such as a flood, earthquake, or drought causes the event, or when the event is a strike or a lawful lockout.
An employer that relies on one of these exceptions must still give as much notice as is practicable, and at the same time provide a brief statement of the reason for the shortened period. Separately, N.Y. Labor Law § 860-b excuses notice entirely when a mass layoff, relocation, or employment loss is caused by a physical calamity or an act of terrorism or war.
Penalties for failing to give notice
An employer that fails to notify affected employees is liable to each of them for back pay and lost benefits, under N.Y. Labor Law § 860-g. Back pay is set at the higher of the employee’s average regular rate over the last three years of employment or the final rate of compensation. Liability runs for the period of the violation, up to a maximum of 60 days, or one-half the number of days the employee actually worked for the employer, whichever is smaller.
A separate civil penalty applies when the employer fails to notify the Department of Labor. Under N.Y. Labor Law § 860-h, that penalty is up to $500 for each day of the violation. The employer avoids the civil penalty by paying each affected employee the back-pay liability within three weeks of ordering the layoff, relocation, or employment loss.
Enforcement runs through two channels. The Commissioner of Labor can pursue liability administratively, and an aggrieved employee, employee representative, or local government can bring a civil action in court within the limitations period fixed by the Civil Practice Law and Rules. A court may award reasonable attorneys’ fees to a prevailing plaintiff. Neither the Commissioner nor a court can stop a closing or layoff from happening; the Act provides money remedies, not an order blocking the event.
How New York WARN differs from the federal WARN Act
New York sets a lower bar than its federal counterpart at nearly every point, which is why the state Act needs its own analysis. Under the federal WARN Act, 29 U.S.C. § 2101, an employer is covered only at 100 or more employees, a plant closing is measured at 50 employment losses, and a mass layoff is measured at 500 employees, or 50 to 499 when they make up at least a third of the workforce. The federal notice period is 60 days under 29 U.S.C. § 2102. New York lowers each threshold: 50 employees to be covered, 90 days of notice, 25 employees for a plant closing, and 250 employees, or 25 at the one-third mark, for a mass layoff. An employer operating in New York that is large enough for both statutes must meet the stricter state standard. New York also brings relocations of 50 miles or more into the same notice framework.
Frequently asked questions
Does the New York WARN Act apply to small businesses?
It depends on headcount. The Act covers employers with 50 or more employees (excluding part-time employees), or 50 or more who together work at least 2,000 hours per week, under N.Y. Labor Law § 860-a. A business below that size is not covered by the state Act, and businesses under 100 employees are outside the federal WARN Act entirely.
How is the 90-day notice period counted?
In calendar days. Section 860-b states that all references to “days” in the Act mean calendar days, so weekends and holidays are included. The 90 days run backward from the date the closing, layoff, or relocation takes effect.
Does the WARN Act require severance pay?
No. The Act requires advance notice, not severance. When an employer fails to give the required notice, N.Y. Labor Law § 860-g makes it liable for back pay and benefits for the period of the violation, up to 60 days. That liability functions as pay in place of the missing notice, but it is not a general severance entitlement, and New York has no separate law requiring severance.
Are part-time employees entitled to WARN notice?
Part-time employees do not count toward the 50-employee coverage threshold or toward the layoff and closing headcounts, but the Act’s protections extend to affected employees generally once an employer is covered. A part-time employee, for these purposes, is someone averaging fewer than 20 hours per week or employed for fewer than 6 of the prior 12 months.
Can employees sue directly for a WARN violation?
Yes. Under N.Y. Labor Law § 860-g, an aggrieved employee, an employee representative, or a local government can bring a civil action in court, in addition to any administrative action by the Commissioner of Labor. A court may award reasonable attorneys’ fees to a plaintiff who prevails.