New York WARN Act: 90-Day Notice, Triggers, and Penalties

The New York Worker Adjustment and Retraining Notification Act requires private employers with 50 or more full-time workers in the state to give 90 days’ written notice before a plant closing, mass layoff, relocation, or significant reduction in hours. That is 30 days longer than the federal WARN Act and the employee threshold is half the federal number, which means many mid-sized New York businesses have notice obligations under state law even when federal WARN does not reach them.

Which Employers Are Covered

The law applies to any private business enterprise that employs 50 or more full-time workers in New York, or 50 or more employees who together work at least 2,000 hours per week. Federal, state, and local government employers are excluded, as are school districts.¹

Part-time workers do not count toward the 50-employee threshold. Under the statute, a part-time employee is someone who averages fewer than 20 hours per week or has worked fewer than six of the 12 months before the date notice is required.¹ The alternative 2,000-aggregate-hours test can pull in employers with fewer than 50 full-timers whose combined workforce logs enough hours to cross the line. Audit the headcount carefully if you are anywhere near either number.

What Triggers the 90-Day Notice

Four kinds of employment actions require notice. Each has its own numeric threshold, and part-time employees are excluded from every count.

Plant Closing

A plant closing is the permanent or temporary shutdown of a single site, or one or more facilities or operating units within it, that causes an employment loss for 25 or more full-time employees during any 30-day period.¹ Temporary shutdowns count. A seasonal or indefinite closure still triggers notice if 25 workers lose their jobs or face layoffs exceeding six months.

Mass Layoff

A mass layoff is a reduction not caused by a plant closing that produces employment losses at a single site during any 30-day period under either of two tests: at least 25 full-time employees are affected and they represent at least 33 percent of the full-time workforce, or at least 250 full-time employees are affected regardless of percentage.¹ Both parts of the first test must be true. Cutting 25 workers who make up only 10 percent of a large workforce does not trigger the law under that prong. Cutting 250 workers does, regardless of percentage.

Relocation

A relocation happens when an employer moves all or substantially all of its industrial or commercial operations to a new location 50 or more miles from the original site, and 25 or more full-time employees suffer an employment loss as a result.² “Substantially all” includes moving an entire division, product line, or other segment. A move of 49 miles does not trigger the relocation provision, though it may still qualify as a plant closing or mass layoff if the employment losses are large enough.

Reduction in Hours

A covered reduction occurs when an employee’s work hours drop by more than 50 percent during each month of any consecutive six-month period.¹ This provision catches employers who avoid outright terminations by slashing schedules for a prolonged stretch.

You Cannot Avoid Notice by Spacing Out Layoffs

Under the aggregation rule, if two or more groups of employees at the same site lose their jobs within any 90-day period and each group individually falls below the thresholds but together meets or exceeds them, the combined losses count as a single plant closing or mass layoff.³ The only escape is proving that each round of cuts resulted from separate and distinct causes rather than a single ongoing business decision.

The New York Department of Labor instructs employers to look both forward and backward in two windows. Look 30 days ahead and 30 days behind each action to see whether planned and completed cuts add up to a plant closing or mass layoff. Then look 90 days ahead and 90 days behind to catch smaller actions that individually do not trigger notice but collectively do.⁴ Workers who already received proper notice during the 30-day window are not double-counted in the 90-day aggregation.

When a Separation Does Not Count

Not every departure counts as an “employment loss.” Discharges for cause, voluntary departures, and retirements are excluded. There is also a transfer exception employers frequently overlook. If a plant closing or mass layoff results from a relocation or consolidation, and the employer offers affected workers a transfer to another site within a reasonable commuting distance with no more than a six-month break in employment, those workers do not count as employment losses. The same applies if the transfer is to a site farther away and the employee accepts within 30 days.¹

This matters strategically. An employer closing one office but offering all affected staff positions at a nearby facility may bring the total employment losses below 25, eliminating the notice requirement.

Who Must Receive Notice

Written notice must be delivered at least 90 days before the first employment loss takes effect.⁵ The list of required recipients is broader than many employers expect:

Every affected employee, meaning any worker who may reasonably be expected to lose their job.
Any exclusive bargaining representative for affected workers under federal labor law.
The New York State Department of Labor, filed through the DOL’s online WARN Portal.
The Local Workforce Development Board serving the area where the affected site is located.
The chief elected official of each local government unit and school district where the site is located.
Each locality that provides police, fire, EMS, or other emergency services to the site.

That last category catches many employers off guard. The requirement to notify emergency service providers goes beyond federal WARN and exists because a sudden closure affects emergency planning and local tax revenue.⁶ Use certified mail or another method that creates a verifiable delivery record. Proof of timely notice is the first thing audited in a dispute.

What the Notice Must Contain

New York requires employers to submit WARN notices through the Department of Labor’s online portal, and the filing calls for more detail than a generic letter.⁷

Employer information required includes the business name, federal employer identification number, industry type, the specific reason for the layoff or closure, and whether foreign trade contributed to the decision. The filing also demands contact information for three separate roles: the person submitting the notice, a public contact whose name will appear on the published notice, and a business liaison who will coordinate with the DOL’s Rapid Response team.

For each affected worker, the filing must include their name, job title, mailing address, separation date, average weekly hours, wage, compensation type, email, mobile phone number, the last four digits of their Social Security number, and their union name if applicable. For each impacted site, the employer must list the address, the total number of employees versus the number affected, the name of the Local Workforce Development Board, the dates notices were sent to required officials, and the method used to notify affected workers.⁷

When You Can Give Less Than 90 Days’ Notice

Four statutory exceptions allow shorter notice, but each carries a heavy burden of proof. The employer must still give as much notice as practicable and must explain in the filing why full notice was not possible, with supporting documentation on company letterhead.⁷

Faltering business, which applies only to plant closings and requires that the employer was actively seeking capital or new business that would have let operations continue, and that giving notice would have undermined those efforts.
Unforeseeable business circumstances, meaning sudden events outside the employer’s control such as the unexpected loss of a major contract or a rapid market collapse.
Natural disaster, when a flood, earthquake, storm, or similar event directly forces an immediate closure.
A strike or lockout that is not intended to evade the law’s requirements.

Vague assertions do not qualify. An employer claiming unforeseeable circumstances should be prepared to show the timeline proving it could not have known about the triggering event far enough in advance.

Business Sales and Remote Workers

When a business changes hands, the seller is responsible for any plant closing or mass layoff that occurs up to and including the date of the sale. After the sale closes, the buyer takes on that obligation.⁸ A sale technically terminates every employee’s employment with the seller, but that technical termination does not count as an employment loss if the workers continue in the same jobs under the new owner. Both parties should confirm in the purchase agreement who is responsible for WARN compliance during the transition.

Because the thresholds are measured at a single site of employment, remote and traveling workers raise their own counting question. Under federal guidance, workers who primarily travel or work away from the employer’s offices are assigned to the site they report to in the employer’s organizational structure, or the home base from which their work is assigned.⁹ A workforce that looks scattered on paper may concentrate at a single site for headcount purposes, pushing an employer over the notice threshold.

Penalties for Non-Compliance

Employers that violate WARN are liable to each affected employee for back pay and the cost of benefits for the period of the violation, up to 60 days under the federal statute. An employer that fails to notify a unit of local government faces a separate civil penalty of up to $500 per day of violation, which can be avoided by satisfying all employee liabilities within three weeks of the closing. Courts have discretion to award reasonable attorney’s fees to the prevailing party in any enforcement suit.¹⁰ For a large employer cutting hundreds of jobs, the combined exposure from back pay, benefits, civil penalties, and legal fees adds up quickly.

How the State Law Differs From Federal WARN

Most New York employers covered by the state law are also covered by the federal version, and the two apply simultaneously. Where they conflict, the employer must follow whichever law imposes the stricter requirement. Compliance with the stricter state law generally satisfies federal requirements. The reverse is not true.

Employer size: federal WARN applies to employers with 100 or more full-time workers. New York drops that to 50.¹¹¹
Notice period: federal law requires 60 calendar days. New York requires 90.¹¹⁵
Mass layoff threshold: federal law requires 50 or more affected employees at a single site. New York starts at 25 when they represent at least 33 percent of the workforce.¹
Notice recipients: New York adds school districts and emergency service providers to the federal list.
Relocation distance: New York sets the relocation trigger at 50 miles from the original site.²

An employer with 75 full-time workers in New York is covered only by the state act. An employer with 150 workers must satisfy both, which in practice means 90 days’ notice to every entity on the longer New York recipient list.

1
New York State Senate. New York Labor Law 860-A – Definitions
2
New York State Department of Labor. WARN For Jobseekers Frequently Asked Questions
3
New York State Senate. New York Labor Law 860-E – Determinations With Respect to Employment Loss
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New York State Department of Labor. WARN For Businesses Frequently Asked Questions
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New York State Senate. New York Labor Law 860-B – Notice
6
New York State Department of Labor. Worker Adjustment and Retraining Notification WARN
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New York State Department of Labor. WARN Notice Filing Instructions
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U.S. Department of Labor. WARN Advisor – What Am I Responsible for if I Sell My Business
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U.S. Department of Labor. WARN Advisor – Single Site of Employment
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U.S. Department of Labor. WARN Advisor – Frequently Asked Questions
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U.S. Department of Labor. Plant Closings and Layoffs