The Government Has Required My Employer In New York To Close Temporarily Because Of COVID-19 Or Another Pandemic. Nonetheless, Must My Employer Pay Me My Hourly Rate?
If the government requires your employer in New York to close temporarily because of COVID-19 or because of another pandemic, your employer may be required to pay, to you, your hourly rate. Whether your employer is required to pay, to you, your hourly rate during such a shutdown depends on whether the shutdown falls within the terms of either the federal WARN Act or the New York WARN Act.
The federal Worker Adjustment and Retraining Notification Act of 1988 (the “federal WARN Act,” the “WARN Act,” “federal WARN,” or “WARN”) offers protection to workers, their families and communities by requiring employers to provide notice 60 days in advance of covered plant closings and covered mass layoffs. An employer who violates the federal WARN provisions by ordering a plant closing or a mass layoff without providing appropriate notice is liable to each aggrieved employee for an amount including back pay and benefits for the period of violation, up to 60 days.
In general, employers are covered by WARN if they have 100 or more employees, not counting employees who have worked less than six months in the last 12 months and not counting employees who work an average of less than 20 hours per week.
Employees entail to notice under WARN include hourly and salaried workers as well as managerial and supervisory employees.
Among the events that triggers notice under WARN is a plant closing. A covered employer must give notice if an employment site, or one or more facilities or operating units within an employment site, will be shut down, and the shutdown will result in an “employment loss” for 50 or more employees during any 30-day period.
The term “employment loss” means, among other things:
- An employment termination, other than a discharge for cause, voluntary departure, or retirement; or
- a layoff exceeding six months.
With three exceptions, notice must be time to reach the required parties at least 60 days before a closing or a layoff.
The exception to 60-day notice, that is relevant to COVID-19 or another pandemic, is unforeseeable business circumstances. This exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice otherwise would have been required.
If an employer provides less than 60 days advance notice of a closing or a layoff and relies on, among other independent exceptions, the unforeseeable business circumstances exception, the employer bears the burden of proof that the conditions for the exception have been met. The employer also must give as much notice as is practicable.
New York WARN
Similarly, under the New York Worker Adjustment and Retraining Notification Act (the “New York WARN Act” or “New York WARN”), private sector employers in New York State that employ more than 50 employees in the State must issue a New York WARN notice 90 days before, among other triggering events, closing a plant.
An employer who violates the New York WARN provisions by ordering a plant closing or a mass layoff without providing appropriate notice is liable to each aggrieved employee for an amount including back pay and benefits for the period of violation, up to 60 days.
Much like federal WARN, New York WARN contains an exception that permits short notice where “[u]nforeseeable business circumstances” precluded the employer from giving 90 days notice. During the current pandemic, many employers have availed themselves of this exception given the sudden, drastic, unexpected economic consequences of the coronavirus.
Furloughs (Temporary Layoffs)
Generally, furloughs (that is, temporary layoffs) of less than six months do not trigger federal WARN or New York WARN. That said, there are some exceptions and the size and length of the layoffs matter.
A Given Employer’s Reduction In Force Brought On By COVID-19 May, Or May Not, Constitute An Unforeseeable Business Circumstance
Whether an employer’s reduction in force prompted by COVID-19 qualifies as an “unforeseeable business circumstance” is a fact-specific inquiry, and depends upon the actions of the employer relative to that of others in its market. Employers may be affected by COVID-19 differently. Court cases illustrate, however, that no employer is held to the standard of hindsight when evaluating whether a business circumstance is unforeseeable.
If you are an executive or a professional in the New York City metro area and you believe that you have been wrongfully terminated, that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call New York City Employment Attorney David S. Rich at (347) 941-0760 today.
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