WARN Notice in NY: Triggers, Exceptions, and Penalties

New York’s WARN Act requires most private employers with at least 50 workers in the state to give 90 days’ written notice before a plant closing, mass layoff, relocation, or major cut in hours. That’s 30 days longer than the federal WARN Act, and it reaches smaller employers than federal law does — the federal threshold is 100 employees, and its notice period is 60 days.¹²

Which Employers Have to Give Notice

The law covers any private business, for-profit or not-for-profit, that meets either of two tests: 50 or more full-time employees in New York, or 50 or more total employees (including part-timers) whose combined hours add up to at least 2,000 per week.³ The second prong is easy to miss. A company with 60 part-timers could still be covered if their aggregate weekly hours reach 2,000.

A part-time employee, for counting purposes, is anyone who averages fewer than 20 hours per week or who has worked for the employer fewer than six of the previous 12 months.⁴ Part-timers don’t count toward the 50-employee threshold, but if a covered event happens, they’re still entitled to notice like everyone else.

Federal, state, and local government agencies, school districts, public authorities, and public benefit corporations are exempt. Private contractors doing work for those entities are not.³ Remote workers count at the site they’re assigned to report to. Subsidiaries and independent contractors may be treated as separate employers or folded into the parent depending on ownership, shared management, and how much operational control the parent has.

Events That Trigger the Notice

Four types of employment actions require a WARN notice in New York. Each has its own threshold, and all are lower than the federal cutoff of 50 affected employees at a single site.²

Plant closing: a single work site shuts down permanently or temporarily, causing job losses for 25 or more full-time employees.
Mass layoff: a reduction in force at a single site affects at least 25 full-time employees who make up at least 33 percent of the full-time workforce there. If 250 or more full-time employees are affected, the 33-percent test drops away.
Relocation: the employer moves all or substantially all of its operations to a location 50 or more miles away and 25 or more full-time employees lose their jobs as a result.³
Covered reduction in hours: employee hours are cut by more than half in each month over a six-month period.¹

In a business sale, the seller owes notice for any triggering event happening on or before the sale date; the buyer owes it for events after closing. If the purchase agreement conditions the deal on employing the seller’s workers and the buyer then declines to hire them, the buyer carries the notice obligation.³

Who Has to Receive the Notice

Written notice must go out at least 90 days before the first separation to every one of the following:⁵

Affected employees, and any union representing them
The New York State Department of Labor
The local Workforce Development Board for the area where the site is located
The chief elected official of the local government and the school district covering the site
Every locality that provides police, fire, EMS, or ambulance service to the site

Delivery can be by first-class mail or personal delivery. The school district and emergency services requirements are specific to New York and are the ones employers most often forget.¹

What the Notice Must Say

The notice to the Department of Labor is the most detailed. It has to include:

The company’s legal name, any trade names, and the address of each affected work site
Contact details for a company official who can answer questions, plus a designated liaison for rapid response services
A list of affected employees with names, home addresses, phone numbers, job titles, work locations, hourly-or-salaried status, and full-time-or-part-time status
The expected date of the first separation and a schedule of any additional separations
Whether the closing, layoff, or relocation is permanent or temporary, and whether the entire plant is shutting down
A statement about whether senior employees have bumping rights to displace junior ones
Total full-time and part-time headcounts statewide and at each affected site, plus the number of affected employees at each site³

The version sent directly to employees is shorter. It must still identify the company and site, give the expected separation date, state whether bumping rights apply, and say whether the action is permanent or temporary. The Department of Labor posts templates on its website.¹

When Shorter Notice Is Allowed

Four exceptions let an employer give less than 90 days. Even then, the employer must give as much notice as is practicable and must explain in the notice itself why the full 90 days wasn’t possible.

Faltering company. This applies only to plant closings. The employer has to show it was actively seeking financing or new business, had a realistic chance of getting it, and reasonably believed announcing the closing would have killed the deal. A company with capital reserves at other locations cannot rely on this exception by pointing only to the finances of the closing site.³
Unforeseeable business circumstances. Something sudden and outside the employer’s control caused the event: a major client canceling a contract, a strike at a key supplier, a dramatic economic downturn, a public health emergency.
Natural disaster. The closing or layoff resulted directly from a flood, earthquake, drought, storm, or similar event.
Strike or lockout. The employment action is the direct result of a labor dispute.

The burden of proof is on the employer, and regulators look at the full circumstances rather than accepting the company’s characterization on its face.

Penalties for Failing to Give Notice

An employer that skips or botches the notice owes back pay and the value of lost benefits — including medical costs the employee paid that the company’s insurance would have covered — for each day of the violation. Liability is capped at 60 days, not 90.⁶ For employees who worked at the company fewer than 120 days, the cap is half the number of days they were employed, whichever is smaller.

The Commissioner of Labor can also impose a civil penalty of up to $500 for each day the employer is in violation.⁷ Any penalty already paid under the federal WARN Act is credited against the state penalty, so the employer doesn’t pay twice for the same violation. Paying back pay voluntarily within three weeks of the layoff can reduce, but not eliminate, the civil penalty. A prevailing employee in a court case can also recover reasonable attorney fees.

What Employees Can Do

Workers who didn’t get proper notice have two options. They can file a complaint with the New York State Department of Labor, which can pursue the claim administratively and award back pay and benefits. They can also sue in court, where attorney fees are available to a prevailing employee.⁵

The statute of limitations is six years. That’s a long runway, but filing sooner is better. Memories fade, companies restructure or dissolve, and the 60-day back pay cap means recovery is the same whether you file in month two or year five.

1
New York State Department of Labor. Worker Adjustment and Retraining Notification (WARN)
2
U.S. Department of Labor. Plant Closings and Layoffs
3
New York State Department of Labor. 12 NYCRR Part 921 – New York State WARN Act Regulations
4
New York State Senate. New York Labor Law LAB 860-A – Definitions
5
New York State Senate. New York Labor Law LAB 860-B – Notice
6
New York State Senate. New York Consolidated Laws Labor Law LAB 860-g
7
New York State Department of Labor. P483 WARN Act Fact Sheet