New York Termination Notice: WARN Act, Deadlines, and Penalties

New York termination notice requirements come from two main sources: Labor Law 195(6), which requires every employer to give a terminated worker written notice of the termination date and the date benefits end within five working days, and the New York WARN Act, which requires 90 calendar days’ advance written notice before a qualifying mass layoff, plant closing, or relocation. Both apply even though New York is an at-will state, and skipping either exposes the employer to back pay, civil penalties, and liquidated damages that can multiply the amount owed.

At-Will Does Not Mean No Notice

New York employers can generally end employment at any time for any lawful reason, and employees can quit the same way. At-will is the default, but it is not a pass on procedure. Several state and federal laws impose specific notice duties that turn on the reason for the termination, the size of the workforce, and how the employee is classified.

At-will also has substantive limits. Firing someone for a discriminatory reason, in retaliation for a protected complaint, or because they exercised a legal right such as jury duty or military leave is unlawful no matter what notice was given. Employment contracts and collective bargaining agreements can override at-will entirely, requiring cause and a specific process before termination takes effect.

The Five-Day Written Notice Under Labor Law 195(6)

Every New York employer must give a terminated employee a written document stating the exact date of termination and the exact date any employer-provided benefits will be canceled. The notice has to be delivered within five working days after the termination date.¹ It applies regardless of the reason for termination and regardless of whether the employee was full-time or part-time.

This is the requirement most employers miss. Telling someone in a meeting that their employment is ending does not satisfy the statute; the law calls for a written document. The five-day clock starts on the actual termination date, not the day the employee packs up. If the notice fails to disclose the cancellation of health insurance, a separate penalty attaches under Labor Law 217.¹

A short letter covering the termination date, the date each benefit ends, and the final paycheck schedule handles the obligation. There is no reason to skip it, and the cost of doing so is far higher than the cost of drafting it.

Final Wage Payment

The final paycheck must be paid no later than the regular payday for the pay period in which the termination occurred, and the employer must mail it if the employee asks.² Federal law does not require immediate payment of final wages, so New York’s payday rule is stricter than many employers expect.³

The check must include all earned wages. New York has no statute requiring vacation payout, but if the employer’s policy or practice pays out unused vacation, failing to honor that creates a wage claim. Each pay stub must show gross wages, deductions, and net wages, and the employer has to be able to explain the calculation on request.¹

Severance, when offered, is supplemental wages for tax purposes. Federal withholding runs at 22 percent up to $1 million in a calendar year and 37 percent on anything above that.⁴

The New York WARN Act: 90 Days Before a Mass Layoff

The state WARN Act applies to private employers with 50 or more full-time employees. A covered employer planning a mass layoff, plant closing, or relocation must provide at least 90 calendar days’ written advance notice to the affected employees, the New York State Department of Labor, local workforce investment boards, the chief elected official of the local government, the local school district, and any locality providing emergency services to the worksite.⁵

A mass layoff is a workforce reduction at a single site during any 30-day period that either affects at least 25 full-time employees making up at least one-third of the workforce, or affects 250 or more full-time employees regardless of what share they represent. Part-time employees are excluded from the count. An employment loss covers terminations that are not for cause, voluntary, or retirements, plus layoffs longer than six months and hour reductions exceeding 50 percent over any six consecutive months.⁵

There is one narrow exception. The 90-day requirement does not apply when the layoff or closing is caused by a physical calamity, an act of terrorism, or war.⁵ New York does not recognize the federal WARN Act’s “faltering company” or “unforeseen business circumstances” exceptions. Employers who assume the federal carve-outs cover them get caught here often.

How Federal WARN Stacks On Top

Larger employers may also be covered by the federal WARN Act, and the two laws stack rather than replace each other. Federal WARN applies to businesses with 100 or more full-time employees, or 100 employees including part-time who collectively work at least 4,000 hours per week.⁶ The federal notice period is 60 calendar days, not 90.⁷

Federal thresholds are higher too: 50 affected employees making up at least one-third of the workforce, or 500 or more employees regardless of percentage.⁸ Because New York’s thresholds are lower and its notice period is longer, a layoff that never hits the federal radar can still trigger state obligations. An employer with 60 full-time workers laying off 30 owes 90 days under New York law and nothing under federal WARN.

When both apply, both must be satisfied. Meeting the 90-day New York requirement covers the 60-day federal period automatically, but the content and distribution rules under each law still have to be met separately.

Severance Releases for Employees 40 and Older

Severance agreements are common when an employer wants a release of legal claims in exchange for pay. They are generally enforceable in New York, but when the employee is 40 or older, the federal Older Workers Benefit Protection Act imposes timing rules the employer cannot waive.

An employee 40 or older must be given at least 21 days to consider the agreement before signing. In a group layoff or exit incentive program, that consideration period extends to 45 days. After signing, the employee has a seven-day revocation window in which they can void the agreement, and it does not become enforceable until that window closes.⁹

Material changes to the offer restart the 21- or 45-day clock from the date of the revised offer.⁹ Pressuring an older employee to sign quickly, or drafting the agreement without the required periods, makes the release unenforceable. The employee keeps the severance and keeps the right to sue.

Continuation of Health Coverage

Federal COBRA requires employers with 20 or more employees to offer terminated workers and their families the option to continue group health coverage at their own expense for a limited period, and the employer must notify the plan administrator of the termination within 30 days of the qualifying event.¹⁰

New York fills the gap for smaller workplaces. State law requires employers with fewer than 20 employees to provide equivalent continuation coverage, commonly called mini-COBRA, for up to 36 months.¹¹ Employees who exhaust their 18 months of federal COBRA can also extend under New York law up to a total of 36 months. Failing to notify a terminated employee about continuation options can compound the Labor Law 195(6) exposure, since the benefit-cancellation disclosure is exactly where this information belongs.

Public-Sector and Unionized Employees

These rules describe the private, non-union baseline. Public employees and union members often have broader protections that override at-will termination entirely.

Under Civil Service Law 75, certain public employees cannot be fired or disciplined without written charges and a formal hearing. The protection covers employees holding permanent appointments in the competitive class of civil service, honorably discharged veterans in classified service positions, and employees in the non-competitive or labor class with at least five years of continuous service in non-confidential, non-policy-influencing roles.¹² Probationary employees, confidential-role employees, and those below the service threshold do not receive it. Government agencies conducting large-scale layoffs are subject to the state WARN Act if they meet the size thresholds, though federal WARN excludes regular federal, state, and local government employers.⁶

Workers under a collective bargaining agreement usually have more protection than state law provides. Most agreements require written notice, a stated reason, and progressive discipline before termination for anything short of serious misconduct. Layoffs may trigger contract rights to advance notice beyond WARN, seniority-based recall, severance, or job placement assistance. Skipping a step in the agreement lets the union file a grievance, and arbitrators finding a procedural violation often order reinstatement with back pay even when the underlying reason for termination was legitimate.

Penalties for Getting It Wrong

New York WARN Act

An employer that fails to give the required 90 days’ notice is liable to each affected employee for back pay at the employee’s average regular rate over the last three years or the final rate, whichever is higher, plus the value of lost benefits including out-of-pocket health coverage costs. Liability runs for the period of the violation, capped at 60 days or half the number of days the employee worked for the employer, whichever is less.¹³

On top of employee back pay, the employer faces a civil penalty of up to $500 for each day of the violation. For an employer that gave zero notice before a qualifying layoff, that penalty alone can reach $45,000 across the full 90-day period. The Commissioner of Labor can reduce both the back-pay liability and the civil penalty if the employer shows reasonable grounds and good faith, such as making voluntary payments to affected workers.¹⁴ Amounts already paid during the violation period, including wages, unconditional severance, health insurance premiums, and any federal WARN liability, are credited against the New York liability.¹³

Wage and Notice Violations

Employers that underpay or withhold earned wages face liquidated damages under Labor Law 198. A successful wage claim recovers the full unpaid amount plus liquidated damages of up to 100 percent of the wages found due. For willful violations of the state’s equal pay provisions, liquidated damages reach 300 percent of the unpaid wages.¹⁵ The only escape is proving a good-faith belief that the payments were correct, and that defense rarely succeeds when the shortfall is plain.

Failing to provide the Labor Law 195(6) written termination notice triggers a separate penalty under Labor Law 217, particularly where the omission concerns health insurance cancellation.¹ Employees who believe a termination was discriminatory have 300 days in New York to file an EEOC charge, since the state enforces its own anti-discrimination laws.¹⁶

The cost of proper notice is trivial next to the cost of skipping it. A five-minute letter covering the termination date, the benefit cancellation timeline, and the final paycheck schedule satisfies Labor Law 195(6) and removes the most common source of post-termination disputes. For larger workforce reductions, the 90-day WARN clock has to be built into the plan from the beginning, not treated as an afterthought once the layoff decision is final.

1
New York State Senate. New York Labor Law 195 (2025) – Notice and Record-Keeping Requirements
2
New York State Senate. New York Labor Law 191 (2025) – Frequency of Payments
3
U.S. Department of Labor. Last Paycheck
4
Internal Revenue Service. Publication 15 (2026), (Circular E), Employer’s Tax Guide
5
New York State Senate. New York Labor Law 860-B – Notice
6
eCFR. Part 639 – Worker Adjustment and Retraining Notification
7
U.S. Department of Labor. Plant Closings and Layoffs
8
eCFR. 20 CFR 639.3 – Definitions
9
eCFR. 29 CFR 1625.22 – Waivers of Rights and Claims Under the ADEA
10
U.S. Department of Labor. Continuation of Health Coverage (COBRA)
11
Department of Financial Services. Consumer Frequently Asked Questions: COBRA Coverage
12
New York State Senate. New York Civil Service Law 75 – Removal and Other Disciplinary Action
13
New York State Senate. New York Labor Law 860-G – Violation; Liability
14
New York State Department of Labor. WARN For Jobseekers: Frequently Asked Questions
15
New York State Senate. New York Labor Law 198 – Costs, Remedies
16
U.S. Equal Employment Opportunity Commission. Time Limits For Filing A Charge