N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 921-1.1

Current through Register Vol. 46, No. 50, December 11, 2024

Section 921-1.1 - Definitions

As used in this Part (rule), Act shall mean the New York State Worker Adjustment and Retraining Notification (WARN) Act (article 25-A of the New York State Labor Law). Additionally, the terms have the following meanings:

(a) Affected employee means an employee, whether full-or part-time, who, at the time notice is required to be given, may reasonably be expected to experience an employment loss as a result of a proposed plant closing, mass layoff, relocation, or covered reduction in hours by the employer and is therefore entitled to notice. The term affected employee also includes employees who will likely lose their jobs because of bumping rights or other factors, to the extent that such individual employees reasonably can be identified at the time notice is required to be given. The term affected employee includes a managerial and supervisory employee, but does not include an officer, director, shareholder, member of an LLC, or business partner with a 10 percent or greater ownership interest, or a consultant or contract employee who has a separate employment relationship with another employer and is paid by that employer or who is self-employed.

(b) Consolidation of all or part of a business means the combining of two or more branches, units, divisions, or like parts of an employer's business operations.

(c) Date of layoff means the last day an employee is eligible or permitted to work for their employer. The fact that an employer continues to pay an employee after the date of the layoff does not change the employee's employment status for purposes of this Part. Payments to an employee subsequent to the date of layoff, whether continuing to pay an employee's normal weekly wage, or for severance pay, vacation pay, personal leave, and other similar benefits, shall not extend the employee's date of layoff.

(d) Days means calendar days.

(e) Employer.

(1) Employer means any business enterprise, whether for-profit or not-for-profit, that employs 50 or more employees (see paragraph (7) of subdivision (e) of this section) within New York State, excluding part-time employees, or 50 or more employees including part-time employees within the state that work in aggregate at least 2,000 hours per week. For purposes of this Part:

(i) The calculation of total weekly hours shall include overtime hours earned on a regular basis;

(ii) Overtime hours earned on a regular basis shall mean any overtime hours worked by an employee when such employee has worked overtime in seven or more weeks out of the twelve weeks immediately prior to the date upon which notice was required under the Act.

(2) Independent contractors, and subsidiaries that are wholly or partially owned by a parent company, may be treated as separate employers depending on the degree of their independence from the parent. Some of the factors to be considered in making this determination include, but are not limited to:

(1) common ownership;

(2) common directors and/or officers;

(3) de facto exercise of control;

(4) unity of personnel policies emanating from a common source; and

(5) the dependency of operations.

(3) A receiver, trustee, debtor-in-possession, or other fiduciary, where those terms are applicable under the provisions of the U.S. Bankruptcy Code (Title 11 of the United States Code), or any other provision of federal or state law where such party is responsible for continuing operations of the business entity, is considered an employer under this Part.

(4) Where a client-employer of a professional employer organization (PEO) has worksite employees under article 31 of the Labor Law, such employees, with the exception of the client-employer's officers, directors, shareholders or partners, are employees of the client-employer for purposes of this Part.

(5) An employer may have one or more sites of employment under common ownership or control.

(6)

(i) The term employer shall not include the federal or state government or any of their political subdivisions, including any unit of local government or any school district, any public authority, public benefit corporation, board, or commission, or any federally recognized Indian tribal government.

(ii) Private for-profit and not-for-profit businesses contracting with such exempted governmental entities are employers.

(7) Number of employees: In reaching a determination whether an employer meets the threshold of 50 employees for purposes of establishing coverage as an employer under this rule:

(i) All individuals employed at a single site of employment, including individuals who work remotely but are based at the employment site, other than part-time employees, are counted as employees for purposes of determining coverage as an employer.

(ii) Individuals on temporary layoff or on leave who have a reasonable expectation of recall, other than part-time employees, are counted as employees. An employee has a reasonable expectation of recall when the employer can demonstrate that it notified the employee that their employment has been temporarily interrupted and that the employee will be recalled to the same or a similar job, or when the employee is notified through industry practice.

(iii) The point in time at which the number of employees is to be measured for the purpose of establishing coverage is the date the first notice is required to be given.

(f) Employment loss.

(1) The term employment loss means:

(i) An employment termination, other than a discharge for cause, voluntary departure, or retirement;

(ii) A mass layoff, as defined in subdivision (i) of this section, that exceeds six months in duration; or

(iii) A reduction in hours of work of more than 50 percent during each month of any consecutive six-month period:

(a) For either:

(1) At least 25 employees constituting at least 33 percent of the employees at the site (excluding part-time employees); or

(2) At least 250 employees (excluding part-time employees) regardless of whether they comprise 33 percent of the employees at the site (excluding part-time employees).

(b) For purposes of this provision, a reduction in hours of work shall not be deemed to have occurred during any week that the employee is receiving unemployment insurance benefits as a partial wage replacement for lost hours of work through the employer's participation in a shared work program under Title 7-A of article 18 of the New York Labor Law, provided however, that should the employer become aware at any point during its participation in the shared work program that an employment loss not subject to this exception will occur, the employer shall provide as much notice of the employment loss as is practicable accompanied by a statement of the basis for reducing the notice period.

(c) For purposes of this provision, the consecutive six-month period shall begin with the first month in which the employee experiences a reduction of more than 50 percent and shall continue for a period of 26 weeks beginning with the first week in which there was a reduction in hours compared with the previous week.

(d) For purposes of this provision, a temporary layoff is a mass layoff with a duration of less than a consecutive six-month period and a planned return of employees after the layoff period ends, which will not be deemed to be subject to the notice requirements set forth in this Part. A permanent layoff is a mass layoff that extends beyond a consecutive six-month period for which the employer must comply with the notice requirements in this Part from the time of the employment loss.

(iv) A plant closing as defined in subdivision (m) of this section affecting 25 or more employees, excluding part-time employees.

(v) A relocation as defined in subdivision (n) of this section affecting 25 or more employees, excluding part-time employees.

(2) An employee does not suffer an employment loss while the employee is reassigned or transferred to an employer-sponsored program, such as retraining or job search activities, as long as the reassignment does not constitute a constructive discharge or other involuntary termination, or otherwise trigger an employment loss as set forth above.

(3) Employment loss shall include a plant closing, mass layoff, covered reduction in work hours, or relocation that is a result of a bankruptcy filing or the sale of a business (see subdivision 921-2.1 of section (b) of this Part).

(g) Facility means a building or other location in which the business operations of an employer takes place.

(h) Hours of work shall generally mean the average hours of work per week for each employee during the previous calendar year. If the employee did not work for at least 90 days during the previous calendar year, hours of work shall mean the average hours of work per week for the 90-day period prior to the date on which notice was due. Overtime hours will be included, if applicable, as described in subdivision (e)(1) of this section.

(i) Mass layoff means a reduction in workforce that:

(1) Is not the result of a plant closing; and

(2) Results in an employment loss at a single site of employment during any 30-day period, beginning on the date of the first employment loss, for either:

(i) At least 25 employees (excluding part-time employees) constituting at least 33 percent of the employees at the site (excluding part-time employees);

(ii) At least 250 employees (excluding part-time employees) regardless of whether they comprise 33 percent of the employees at the site.

(j) Merger means a combination of all or part of the business operations of two separate employers.

(k) Operating unit means an organizationally or operationally distinct product, operation, or specific work function within or across facilities at a single site of employment.

(l) Part-time employee means an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than six of the 12 months preceding the date on which notice is required. Part-time employees for purposes of this Part may include employees who have worked full-time for fewer than six of the 12 months preceding the date on which notice is required. In determining whether an employee worked an average of fewer than 20 hours per week, the shorter of the actual period the employee was employed or the 90 day period immediately prior to the date on which the notice is required shall be used.

(m) Plant closing means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any 30-day period at such site for 25 or more employees, excluding any part-time employees. An employment action that results in the effective cessation of production or of the work performed by a unit, even if a few employees remain, is a shutdown. A temporary shutdown triggers the notice requirement if the minimum number of terminations, layoffs exceeding six months, or reductions in work hours constitute an employment loss under the Act.

(n) Relocation means the removal of all or substantially all of the industrial or commercial operations of an employer to a different location fifty miles or more away from the original site of operation where 25 or more employees, excluding part-time employees, suffer an employment loss. For the purposes of this Part, relocation of substantially all of the operations of an employer shall include the relocation of an entire unit, product line, division or other segment of the employer's operation.

(o) Employee representative means an exclusive representative of employees within the meaning of section 9(a) or 8(f) of the National Labor Relations Act (29 U.S.C. 159(a), 158(f)), section 2 of the Railway Labor Act (45 U.S.C. 152), or the New York Labor Relations Act (New York Labor Law sec. 700 et seq.). Where an event requiring notice occurs at an employment site involving employees represented by more than one bargaining unit, notice must be sent to each bargaining unit representing employees affected by the plant closing, mass layoff, relocation or covered reduction in work hours.

(p) Single site of employment.

(1) For the purposes of this Part, the following shall apply to the determination of whether an employment loss involves a single site of employment:

(i) Several single sites of employment within a single building may exist if separate employers conduct activities within the building. For example, an office building housing 50 different businesses will contain 50 single sites of employment.

(ii) A single site of employment may refer to either a single location or a group of contiguous locations in proximity to one another even though they are not directly connected to one another. For example, groups of structures which form a campus or industrial park or separate facilities across the street from one another owned by the same employer may be considered a single site of employment.

(iii) Separate buildings or facilities which are not physically connected or are not in proximity to one another may be considered a single site of employment if they are in reasonable geographic proximity, are used by the employer for the same purpose, and share the same staff or equipment. Where an employer has two separate locations in the geographic area and the purpose of one location is to support the operations of the other location, and this support requires travel between the two locations, the two locations will be considered a single-site.

(iv) Contiguous buildings occupied by the same employer that have separate management, produce different products or provide different services, and have separate workforces do not constitute a single site of employment.

(v) Non-contiguous sites in the same geographic area that have separate management, produce different products or provide different services, and have separate workforces do not constitute a single site of employment.

(vi) The single site of employment for employees whose primary duties require travel from point to point, who are out-stationed, or whose primary duties involve work outside any of the employer's regular employment sites (e.g., railroad employees, bus drivers, salespersons), shall be the site to which they are assigned as their employer's home base, from which their work is assigned, or to which they report.

(q) Local board means a Local Workforce Investment Board as defined by the Workforce Investment Act, or a Local Workforce Development Board as defined by the Workforce Innovation and Opportunity Act, or any similar local workforce board defined under a federal law which amends or supersedes the Workforce Innovation and Opportunity Act or its successors.

N.Y. Comp. Codes R. & Regs. Tit. 12 §§ 921-1.1

Amended New York State Register June 21, 2023/Volume XLV, Issue 25, eff. 6/21/2023