Bill Text: NY S08562 | 2019-2020 | General Assembly | Introduced

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Bill Title: Removes the exclusion of part-time employees from certain definitions relating to employment and expanding the definition of employer; removes certain exclusions for employer notice requirements for the closing of a facility; removes the discretionary reduction of penalties for employers for certain acts or omissions concerning notice requirements for mass layoffs, relocations or employment loss; removes the maximum time period for determining back pay and other liabilities for certain employees who experience employment loss; and allows the attorney general to take certain action to assist certain employees in receiving back pay and other liabilities.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2020-06-16 - REFERRED TO RULES [S08562 Detail]

Download: New_York-2019-S08562-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8562

                    IN SENATE

                                      June 16, 2020
                                       ___________

        Introduced  by  Sen.  MAYER  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        AN ACT to amend the labor law, in relation to removing the exclusion  of
          part-time  employees  from  certain definitions relating to employment
          and expanding the definition of employer; removing certain  exclusions
          for employer notice requirements for the closing of a facility; remov-
          ing the discretionary reduction of penalties for employers for certain
          acts  or  omissions  concerning  notice requirements for mass layoffs,
          relocations or employment loss; removing the maximum time  period  for
          determining   back pay and other liabilities for certain employees who
          experience employment loss; and allowing the attorney general to  take
          certain  action  to assist certain employees in receiving back pay and
          other liabilities

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1. Section 860-a of the labor law, as added by chapter 475 of
     2  the laws of 2008, is amended to read as follows:
     3    § 860-a. Definitions. As used in this  article,  the  following  terms
     4  shall have the following meanings:
     5    1. "Affected employees" means employees who may reasonably be expected
     6  to  experience an employment loss as a consequence of a proposed [plant]
     7  facility closing or mass layoff by their employer.
     8    2. "Affiliate" means a person that directly, or indirectly through one
     9  or more intermediaries, controls, or  is  controlled  by,  or  is  under
    10  common control with, a specified person.
    11    3.  "Associate", when used to indicate a relationship with any person,
    12  means:
    13    (a) any entity of which such person is an officer or  partner  or  is,
    14  directly  or  indirectly, the beneficial owner of ten percent or more of
    15  any class of voting securities;
    16    (b) any trust or other estate in which such person has  a  substantial
    17  beneficial interest or as to which such person serves as trustee or in a
    18  similar fiduciary capacity; and

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15578-07-0
        S. 8562                             2

     1    (c)  any  relative  or  spouse of such person, or any relative of such
     2  spouse, who has the same home as such person.
     3    4. "Beneficial owner", when used with respect to any securities, means
     4  a person:
     5    (a)  that,  individually  or  with or through any of its affiliates or
     6  associates, beneficially owns such securities, directly  or  indirectly;
     7  or
     8    (b)  that,  individually  or  with or through any of its affiliates or
     9  associates, has (i) the right to acquire such securities,  whether  such
    10  right  is  exercisable  immediately  or  only after the passage of time,
    11  pursuant to any agreement, arrangement or understanding, whether or  not
    12  in  writing, or upon the exercise of conversion rights, exchange rights,
    13  warrants or options, or otherwise; or (ii) the right to vote such  secu-
    14  rities  pursuant to any agreement, arrangement or understanding, whether
    15  or not in writing; provided, however, that a person shall not be  deemed
    16  the  beneficial  owner  of any securities under this subparagraph if the
    17  agreement, arrangement or understanding  to  vote  such  securities  (1)
    18  arises  solely  from a revocable proxy or consent given in response to a
    19  proxy or consent solicitation made in  accordance  with  the  applicable
    20  rules and regulations under the Exchange Act and (2) is not then report-
    21  able  on  a  Schedule  13D  under the Exchange Act, or any comparable or
    22  successor report; or
    23    (c) that has any agreement, arrangement or understanding,  whether  or
    24  not  in  writing,  for the purpose of acquiring, holding, voting, except
    25  voting pursuant to a revocable proxy or consent as described in subpara-
    26  graph (ii) of paragraph (b) of this subdivision, or  disposing  of  such
    27  securities with any other person that beneficially owns, or whose affil-
    28  iates or associates beneficially own, directly or indirectly, such secu-
    29  rities.
    30    5.  "Control",  including the terms "controlling", "controlled by" and
    31  "under common control with", means the possession, directly or indirect-
    32  ly, of the power to direct or cause the direction of (a) the  management
    33  and policies of a person, (b) the operation of a person, or (c) substan-
    34  tially  all  of the assets of a person, whether through the ownership of
    35  voting securities, by contract,  or  otherwise.  A  person's  beneficial
    36  ownership of ten percent or more of an entity's outstanding voting secu-
    37  rities  shall  create a presumption that such person has control of such
    38  entity.  Notwithstanding the foregoing, a person shall not be deemed  to
    39  have  control  of  an  entity if such person holds voting securities, in
    40  good faith and not for the purpose of circumventing this section, as  an
    41  agent, bank, broker, nominee, custodian or trustee for one or more bene-
    42  ficial owners who do not individually or as a group have control of such
    43  entity.
    44    6. "Employment loss" means:
    45    (a)  an  employment  termination,  other  than  a discharge for cause,
    46  voluntary departure other than in anticipation of an announced  facility
    47  closing or mass layoff, or retirement;
    48    (b) a mass layoff exceeding six months;
    49    (c)  a  reduction  in  hours of work of more than fifty percent during
    50  each month of any consecutive six-month period.
    51    "Employment loss" shall not result under circumstances where a [plant]
    52  facility closing or mass layoff is  the  result  of  the  relocation  or
    53  consolidation  of part or all of the employer's business and, before the
    54  closing or mass layoff, the employer offers to transfer the employee  to
    55  a  different  site  of employment within a reasonable commuting distance
    56  with no more than a six-month  break  in  employment,  or  the  employer
        S. 8562                             3

     1  offers to transfer the employee to any other site of employment, regard-
     2  less of distance, with no more than a six-month break in employment, and
     3  the  employee  accepts within thirty days of the offer or of the closing
     4  or mass layoff, whichever is later.
     5    [3.] 7. "Employer" means any business enterprise that employs fifty or
     6  more employees[, excluding part-time employees, or fifty or more employ-
     7  ees  that  work  in the aggregate at least two thousand hours per week].
     8  "Employer" shall include any affiliate of an employer. "Employer"  shall
     9  not  include  the  federal or state government or any of their political
    10  subdivisions, including any unit  of  local  government  or  any  school
    11  district.
    12    [4.]  8. "Exchange Act" means the act of Congress known as the Securi-
    13  ties Exchange Act of 1934, as the same has  been  or  hereafter  may  be
    14  amended from time to time.
    15    9. "Mass layoff" means a reduction in force which:
    16    (a) is not the result of a [plant] facility closing; and
    17    (b) results in an employment loss for those working at or reporting to
    18  a single site of employment during any thirty-day period for[:
    19    (i)  at  least  thirty-three percent of the employees (excluding part-
    20  time employees); and
    21    (ii) at least twenty-five employees (excluding  part-time  employees);
    22  or
    23    (iii)  at  least  two  hundred  fifty  employees  (excluding part-time
    24  employees)] twenty or more employees.
    25    [5. "Part-time employee" means an employee  who  is  employed  for  an
    26  average of fewer than twenty hours per week or who has been employed for
    27  fewer  than  six of the twelve months preceding the date on which notice
    28  is required.
    29    6. "Plant] 10. "Facility closing" means  the  permanent  or  temporary
    30  shutdown  of  a  single site of employment, or one or more facilities or
    31  operating units within a single site  of  employment,  if  the  shutdown
    32  results  in  an  employment loss at the single site of employment during
    33  any thirty-day period for [twenty-five] twenty or more employees [(other
    34  than part-time employees)].
    35    [7.] 11. "Representative" means an exclusive representative within the
    36  meaning of section 9(a) or 8(f) of the National Labor Relations Act  (29
    37  U.S.C.  159(a), 158(f)) or section 2 of the Railway Labor Act (45 U.S.C.
    38  152).
    39    [8.] 12. "Relocation" means the removal of all or substantially all of
    40  the  industrial  or  commercial operations of an employer to a different
    41  location fifty miles or more away.
    42    13. "Person" means any individual,  partnership,  association,  corpo-
    43  ration,  cooperative,  limited  liability company, firm, trust, or other
    44  entity.
    45    § 2. Subdivisions 5 and 7 of section 860-b of the labor law, as  added
    46  by chapter 475 of the laws of 2008, are amended to read as follows:
    47    5. In the case of a sale of part or all of an employer's business, the
    48  seller shall be responsible for providing notice for any [plant] facili-
    49  ty  closing  or  mass  layoff in accordance with this section, up to and
    50  including the effective date of the sale. After the  effective  date  of
    51  the  sale  of part or all of an employer's business, the purchaser shall
    52  be responsible for providing notice for any [plant] facility closing  or
    53  mass  layoff  in accordance with this section. Notwithstanding any other
    54  provision of this article, any person who is an employee of  the  seller
    55  as  of the effective date of the sale shall be considered an employee of
    56  the purchaser immediately after the effective date of the sale.
        S. 8562                             4

     1    7. Nothing set forth herein shall be read to prevent an  employer  who
     2  is  not required to comply with the notice requirements of this section,
     3  to the extent possible, to provide  notice  to  its  employees  about  a
     4  proposal  to  close  a  [plant] facility or permanently reduce its work-
     5  force.
     6    §  3.  Subdivision  1  of  section 860-c of the labor law, as added by
     7  chapter 475 of the laws of 2008, is amended to read as follows:
     8    1. In the case of a  [plant]  facility  closing  or  mass  layoff,  an
     9  employer is not required to comply with the notice requirement in subdi-
    10  vision one of section eight hundred sixty-b of this article if:
    11    (a)[(i)  at the time the notice would have been required, the employer
    12  was actively seeking capital or business; and
    13    (ii) the capital or business sought, if obtained, would  have  enabled
    14  the employer to avoid or postpone the relocation or termination; and
    15    (iii)  the  employer reasonably and in good faith believed that giving
    16  the notice required by subdivision one of section eight hundred  sixty-b
    17  of  this  article  would  have precluded the employer from obtaining the
    18  needed capital or business;
    19    (b) the need for a notice was not reasonably foreseeable at  the  time
    20  the notice would have been required;
    21    (c)]  the  [plant]  facility closing is of a temporary facility or the
    22  [plant] facility closing or mass layoff is the result of the  completion
    23  of  a particular project or undertaking, and the affected employees were
    24  hired with the understanding that their employment was  limited  to  the
    25  duration of the facility or project or undertaking;
    26    [(d)]  (b)  the  [plant] facility closing or mass layoff is due to any
    27  form of natural disaster, such as a flood, earthquake, or drought, or  a
    28  federal, state or local state of emergency has been declared; or
    29    [(e)]  (c) the facility closing or mass layoff constitutes a strike or
    30  constitutes a lockout not intended to evade  the  requirements  of  this
    31  article.  Nothing  in  this  article  shall require an employer to serve
    32  written notice when permanently replacing a person who is deemed  to  be
    33  an  economic  striker  under the National Labor Relations Act (29 U.S.C.
    34  151 et seq.). Nothing in this article shall be  deemed  to  validate  or
    35  invalidate  any judicial or administrative ruling relating to the hiring
    36  of permanent replacements for economic strikers under the National Labor
    37  Relations Act.
    38    § 4. The opening paragraph of section 860-d of the labor law, as added
    39  by chapter 475 of the laws of 2008, is amended to read as follows:
    40    A mass layoff of more than  six  months  which,  at  its  outset,  was
    41  announced  to  be  a mass layoff of six months or less with an announced
    42  expected date of recall shall be treated as  an  employment  loss  under
    43  this article unless:
    44    §  5.  Section  860-e of the labor law, as added by chapter 475 of the
    45  laws of 2008, is amended to read as follows:
    46    § 860-e. Determinations with respect to employment loss. In  determin-
    47  ing  whether  a  [plant] facility closing or mass layoff has occurred or
    48  will occur, employment losses for two or more groups of employees  at  a
    49  single site of employment, each of which is less than the minimum number
    50  of employees specified in [subdivisions four or six] subdivision nine or
    51  ten  of  section  eight hundred sixty-a of this article but which in the
    52  aggregate meet or exceed that minimum number set forth in such  subdivi-
    53  sions,  and which occur within any ninety-day period shall be considered
    54  to be a [plant] facility closing or  mass  layoff  unless  the  employer
    55  demonstrates  that  the employment losses are the result of separate and
        S. 8562                             5

     1  distinct actions and causes and are not an attempt by  the  employer  to
     2  evade the requirements of this article.
     3    § 6.  Subdivisions 2, 4, 6, 7 and 8 of section 860-g of the labor law,
     4  as  added  by  chapter  475  of the laws of 2008, are amended to read as
     5  follows:
     6    2. Back pay and other liability under this section is  calculated  for
     7  the period of the employer's violation, [up to a maximum of sixty days,]
     8  or  one-half  the  number  of days that the employee was employed by the
     9  employer, whichever period is smaller.
    10    4. The amount of an employer's liability under subdivision one of this
    11  section, shall be reduced by the following:
    12    (a) Any wages, except vacation moneys accrued before the period of the
    13  employer's violation, paid by the employer to the  employee  during  the
    14  period of the employer's violation.
    15    (b)  Any  voluntary and unconditional payments made by the employer to
    16  the employee that were not required to satisfy any legal obligation.
    17    (c) Any [payments by the employer to a third party or trustee, such as
    18  premiums for health benefits  or  payments  to  a  defined  contribution
    19  pension  plan,  on  behalf  of  and attributable to the employee for the
    20  period of the violation.
    21    (d) Any] liability paid by the employer under any  applicable  federal
    22  law  governing  notification of mass layoffs, [plant] facility closings,
    23  or relocations.
    24    [(e)] (d) In an administrative proceeding  by  the  commissioner,  any
    25  liability paid by the employer prior to the commissioner's determination
    26  as the result of a private action brought under this article.
    27    [(f)]  (e) In a private action brought under this article, any liabil-
    28  ity paid by the employer in an administrative proceeding by the  commis-
    29  sioner prior to the adjudication of such private action.
    30    6. [If an employer proves to the satisfaction of the commissioner that
    31  the  act  or  omission  that violated this article was in good faith and
    32  that the employer had reasonable grounds for believing that the  act  or
    33  omission  was  not a violation of this article, the commissioner may, in
    34  his or her discretion, reduce the amount of liability  provided  for  in
    35  this  section.  In determining the amount of such reduction, the commis-
    36  sioner shall consider (a) the size of the employer;  (b)  the  hardships
    37  imposed  on  employees by the violation; (c) any efforts by the employer
    38  to mitigate the violation;  and  (d)  the  grounds  for  the  employer's
    39  belief.
    40    7.]  An aggrieved employee, local government, or an employee represen-
    41  tative seeking to establish liability against an employer  may  bring  a
    42  civil  action on behalf of the person, other persons similarly situated,
    43  or both, in any court of competent jurisdiction, within the time  period
    44  provided  by  section two hundred thirteen of the civil practice law and
    45  rules. The court may award reasonable attorneys' fees as part  of  costs
    46  to any plaintiff who prevails in a civil action brought under this arti-
    47  cle.  If  the  court  determines that an employer conducted a reasonable
    48  investigation in good faith, and had reasonable grounds to believe  that
    49  its  conduct  was  not a violation of this article, the court may reduce
    50  the amount of any penalty it would otherwise impose against the employer
    51  under this article.
    52    [8.] 7. Neither the commissioner nor any court shall have the authori-
    53  ty to enjoin a [plant] facility  closing,  relocation,  or  mass  layoff
    54  under  this  article;  provided, however, whenever an employer is liable
    55  pursuant to subdivision one of this section, application may be made  by
    56  the  attorney general in the name of the people of the state of New York
        S. 8562                             6

     1  to a court or justice having jurisdiction by  a  special  proceeding  to
     2  issue  an  injunction, and upon notice to the defendant of not less than
     3  five days, to enjoin and restrain the actions of such employer  or  take
     4  such  other actions the attorney general may deem appropriate to enforce
     5  the provisions of subdivision one of this section.   In connection  with
     6  any  such  proposed  application,  the attorney general is authorized to
     7  take proof and make a determination of the relevant facts and  to  issue
     8  subpoenas in accordance with the civil practice law and rules.
     9    8.  No  waivers  of  liability under this article shall be enforceable
    10  unless supervised by a court, the commissioner or certified class  coun-
    11  sel.
    12    § 7. This act shall take effect immediately.