New York - New Statutes Provide Greater Protection for Employees

“Mini” Worker Adjustment and Retraining Notification Act

On August 5, 2008, the New York State Worker Adjustment and Retraining Notification Act (NY Mini WARN) was signed into law by Governor David A. Paterson. The NY Mini WARN, which takes effect in February of 2009, is far more burdensome for private-sector employers than its counterpart, the federal Worker Adjustment and Retraining Notification Act (U.S. WARN Act). New York joins California, Illinois, New Jersey and an increasing number of other states that have enacted their own state law counterparts to the U.S. WARN Act.
 
There are a number of important differences between the NY Mini WARN and the U.S. WARN Act:

• The NY Mini WARN applies to private-sector employers with 50 or more full-time employees, while the U.S. WARN Act only applies to employers who employ 100 or more full-time employees.
• The NY Mini WARN requires that employers provide their employees, their union representatives, the New York State Department of Labor and local workforce agencies with written notice of a covered mass layoff, plant closing or relocation at least 90 days prior to the employer’s action. The U.S. WARN Act only requires 60 days notice of an employer’s mass layoff, plant closing or relocation.
• The NY Mini WARN requires that employers provide 90 days notice when a mass layoff or relocation results in 25 full-time employees who represent at least 33% of the workforce losing their jobs over a 30-day period. The U.S. WARN Act requires 60 days notice for the same events, but only if 50 full-time employees representing 33% of the workforce will lose their jobs at a single site.
• While the U.S. WARN Act provides for only a private right of action, the NY Mini WARN provides for both a private right of action and administrative enforcement by the New York State Department of Labor.

Other NY Mini WARN requirements are similar to the U.S. WARN Act’s provisions. For example, both statutes have “faltering company” exceptions to the notice provisions. Also, both laws cap an employer’s liability for violations to 60 days back pay and employee benefits.

Clearly, the NY Mini WARN provides greater protection to employees than the U.S. WARN Act. It mandates a longer notice period and lowers the threshold number of employees being eliminated for it to apply. There are other notable differences in the text and application of the NY Mini WARN and the U.S. WARN Act. Consequently, New York employers should carefully review both statutes when faced with a plant closing, mass layoff or relocation of work.

Broadcast Employees Freedom to Work Act

The New York Broadcast Employees Freedom to Work Act (Freedom to Work Act) was also signed into law on August 5, 2008, but unlike the NY Mini Warn, it took effect immediately. The Freedom to Work Act restricts broadcasting industry employers from limiting broadcast employees’ ability to be hired after terminating their employment. Essentially, the Freedom to Work Act makes the typical non-compete provisions of many employment agreements unenforceable for broadcast employees or prospective broadcast employees. The statute prohibits certain contract provisions that require broadcast employees or prospective broadcast employees to refrain from obtaining employment in a specific region, working for a specified period of time, or accepting employment with a particular competitor or within a particular industry after their employment ends. Moreover, employees cannot waive their rights under the Freedom to Work Act.
 
Historically, New York has left the interpretation, as well as the enforceability, of non-competes and other restrictive covenants to its state and federal courts. These courts have generally applied a rule of “reasonableness” when determining whether a non-compete agreement will be enforced. Now, New York State and California (where covenants not to compete are generally unenforceable for all employees), two states which have a high percentage of the broadcasting industry employers in the United States, prohibit non-compete agreements for broadcast employees and prospective broadcast employees.