Bill Text: PA HB2390 | 2009-2010 | Regular Session | Introduced

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Bill Title: Requiring notification of employees, the Department of Labor and Industry and municipalities when mass layoffs and business closings occur; and providing for civil penalties and for powers and duties of the Department of Labor and Industry.

Spectrum: Moderate Partisan Bill (Democrat 16-2)

Status: (Introduced - Dead) 2010-04-07 - Referred to LABOR RELATIONS [HB2390 Detail]

Download: Pennsylvania-2009-HB2390-Introduced.html

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PRINTER'S NO. 3489
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 2390 Session of2010
INTRODUCED BY WHITE, BELFANTI, BRADFORD, BRENNAN, DALEY, DePASQUALE, FREEMAN, GIBBONS, HORNAMAN, JOSEPHS, KULA, MURT, M. O'BRIEN, QUINN, SANTONI, SIPTROTH, K. SMITH AND THOMAS, APRIL 7, 2010
REFERRED TO COMMITTEE ON LABOR RELATIONS, APRIL 7, 2010
AN ACT
Requiring notification of employees, the Department of Labor and
Industry and municipalities when mass layoffs and business
closings occur; and providing for civil penalties and for
powers and duties of the Department of Labor and Industry.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Worker
Adjustment and Retraining Notification Act.
Section 2. Declaration of policy.
The General Assembly finds and declares as follows:
(1) The impact of business closings and job loss due to
mergers and downsizing can be devastating to both individuals
and communities.
(2) With adequate notice of business closings and job
loss due to mergers and downsizing, employees, unions, State
and local government, business and community leaders can take
action to prevent the job loss or to implement plans for new
employment opportunities.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Affected employee." An employee who may reasonably be
expected to experience an employment loss as a consequence of a
proposed business closing or mass layoff by the employee's
employer.
"Business closing." 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 at the single site of
employment during any 30-day period for 30 or more employees,
excluding any part-time employees.
"Department." The Department of Labor and Industry of the
Commonwealth.
"Employer." A business enterprise that employs:
(1) fifty or more employees, excluding part-time
employees, whether at one or multiple sites; or
(2) fifty or more employees who in the aggregate work at
least 2,000 hours per week, exclusive of hours of overtime.
"Employment loss." Any of the following:
(1) An employment termination, other than a discharge
for cause, voluntary departure or retirement.
(2) A mass layoff exceeding six months.
(3) A reduction in hours of work of more than 50% during
each month of any six-month period.
"Mass layoff." A reduction in force that meets both of the
following criteria:
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(1) Is not the result of a business closing.
(2) Results in an employment loss at the single or
multiple sites of employment during any 30-day period for:
(i) at least 33% of the employees and at least 25
employees; or
(ii) at least 250 employees.
"Part-time employee." 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.
"Plant closing." 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 at the single site of
employment during any 30-day period for 25 or more employees,
other than part-time workers.
"Relocation." The removal of all or substantially all of the
industrial or commercial operations of an employer to a
different location 50 or more miles away.
"Representative." An exclusive representative of employees
for collective bargaining purposes.
"Secretary." The Secretary of Labor and Industry of the
Commonwealth.
Section 4. Notice required before business closing and mass
layoffs.
(a) Parties to be notified.--An employer may not order a
business closing, mass layoff or relocation until the end of a
90-day period after the employer serves written notice of the
closing or layoff order:
(1) To each representative of the affected employees as
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of the time of the notice or, if there is no representative
at that time, to each affected employee.
(2) To the department and the chief elected official of
the municipality within which the closing or layoff is to
occur. If there is more than one municipality, the
municipality that the employer shall notify is the
municipality to which the employer pays the taxes for the
year preceding the year for which the determination is made.
(3) To the local workforce investment board established
pursuant to the Workforce Investment Act of 1998 (Public Law
105-220, 112 Stat. 936) for the locality in which the
business closing, relocation or mass layoffs will occur.
(b) Reduction of notification period.--The following shall
apply:
(1) An employer may order a business closing or mass
layoff before the conclusion of the 90-day period if the
closing or mass layoff is caused by business circumstances
that were not reasonably foreseeable as of the time that
notice would have been required.
(2) No notice under this act shall be required if the
business closing or mass layoff is due to any form of natural
disaster, including, but not limited to, a flood, earthquake
or drought.
(3) An employer relying on this subsection shall give as
much notice as is practicable and at that time shall give a
brief statement of the basis for reducing the notification
period.
(c) Extension of layoff period.--A layoff of more than six
months which, at its outset, was announced to be a layoff of six
months or less shall be treated as an employment loss under this
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act unless:
(1) The extension beyond six months is caused by
business circumstances, including unforeseeable changes in
price or cost, not reasonably foreseeable at the time of the
initial layoff.
(2) Notice is given at the time it becomes reasonably
foreseeable that the extension beyond six months is required.
(d) Determinations regarding employment loss.–-For purposes
of this section, in determining whether a business closing or
mass layoff has occurred or will occur, employment losses for
two or more groups at a single site of employment, each of which
is less than the minimum number of employees specified in the
definition of "business closing" or "mass layoff" under section
3, but which in the aggregate exceed that minimum number and
occur within any 90-day period, shall be considered to be a
business closing or mass layoff unless the employer demonstrates
that the employment losses are the result of separate and
distinct actions and causes and not an attempt by the employer
to evade the requirements of this act.
Section 5. Special circumstances.
(a) Sale or merger of business.--The following shall apply:
(1) In the case of a sale or merger of part or all of an
employer's business, the seller or original employer shall be
responsible for providing notice for any business closing or
mass layoff in accordance with section 4, up to and including
the effective date of the sale or merger.
(2) After the effective date of the sale or merger of
part or all of an employer's business, the purchaser or
resulting merged entity shall be responsible for providing
notice for any business closing or mass layoff in accordance
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with section 4.
(3) Notwithstanding any other provision of this act, a
person who is an employee of the seller or original employer
other than a part-time employee as of the effective date of
the sale or merger shall be considered an employee of the
purchaser or resulting merged entity immediately after the
effective date of the sale or merger.
(b) Exception.--An employee may not be considered to have
experienced an employment loss if the closing or layoff is the
result of the relocation or consolidation of part or all of the
employer's business and, prior to the closing or layoff:
(1) the employer offers to transfer the employee to a
different site of employment within a reasonable commuting
distance with no more than a six-month break in employment;
or
(2) the employer offers to transfer the employee to any
other site of employment regardless of distance with no more
than a six-month break in employment and the employee accepts
within 30 days of the offer or of the closing or layoff,
whichever is later.
Section 6. Exemptions.
(a) General rule.--This act shall not apply to a business
closing or mass layoff if:
(1) The closing is of a temporary facility or the
closing or layoff is the result of the completion of a
particular project or undertaking and the affected employees
were hired with the understanding that their employment was
limited to the duration of the facility or the project or
undertaking.
(2) The closing or layoff constitutes a strike or
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constitutes a lockout not intended to evade the requirements
of this act.
(b) Plant closings.--In the case of a plant closing, an
employer is not required to comply with the notice requirement
in section 4 if:
(1) at the time the notice would have been required, the
employer was actively seeking capital or business;
(2) the capital or business sought, if obtained, would
have enabled the employer to avoid or postpone the relocation
or termination; and
(3) the employer reasonably and in good faith believed
that giving the notice required by section 4 of this act
would have precluded the employer from obtaining the needed
capital or business.
(c) Economic strikers.--Nothing in this act shall require an
employer to serve written notice pursuant to section 4 when
permanently replacing a person who is deemed to be an economic
striker under the National Labor Relations Act (49 Stat. 449, 29
U.S.C. § 151 et seq.). Nothing in this act shall be deemed to
validate or invalidate any judicial or administrative ruling
relating to the hiring of permanent replacements for economic
strikers under the National Labor Relations Act.
Section 7. Administration and enforcement requirements.
The following shall apply:
(1) The secretary shall prescribe such rules and
regulations as may be necessary to carry out this act. The
rules and regulations shall, at a minimum, include provisions
that allow the parties access to administrative hearings for
any actions of the department under this section.
(2) In any investigation or proceeding under this act,
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the secretary has, in addition to all other powers granted by
law, the authority to examine any information of an employer
necessary to determine whether a violation of this act has
occurred, including to determine the validity of any defense.
(3) Except as provided in this section, information
obtained through administration of this act from an employer
subject to this act and that is not otherwise obtainable by
the secretary under this section shall be confidential and
shall not be published or open to public inspection. Prior to
public disclosure of any such information in connection with
any court action or proceeding, the employer shall be given a
reasonable opportunity to make application to protect the
information's confidentiality.
(4) No decision or order issued pursuant to this act
shall be admissible or used in evidence in any subsequent
court proceeding except in an action by the secretary or the
employer to implement, enforce or challenge a determination
made by the secretary pursuant to this act.
(5) Any officer or employer of the State, any officer or
employee of any entity authorized to obtain information
pursuant to this section and any agent to this State or of
such entity who, except with authority of the secretary under
this section, discloses information commits a misdemeanor.
(6) If, after an administrative hearing, the secretary
determines that an employer has violated a requirement of
this act or rules or regulations promulgated under this act,
the secretary shall issue an order that shall include any
penalties assessed by the secretary under this act. Upon the
entry of the order, a party aggrieved thereby may commence a
proceeding for review pursuant to the civil practice law and
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rules within 30 days from the notice of the filing of the
order in the office of the secretary. The proceeding shall be
commenced in the Commonwealth Court. If the order is not
reviewed or if it is reviewed and the final decision is in
favor of the secretary, the secretary may file with the clerk
of the county where the employer resides or has a place of
business the order of the secretary containing the amount
found to be due. The filing of the order shall have the full
force and effect of a judgment duly docketed in the office of
the clerk. The order may be enforced by and in the name of
the secretary in the same manner, and with like effect, as
that prescribed by the civil practice law and rules for the
enforcement of a money judgment.
(7) The secretary shall promptly distribute any back pay
and the value of benefits recovered to employees subject to
the violation.
Section 8. Civil actions and remedies.
(a) Liability of employer.--An employer who orders a
business closing or mass layoff in violation of section 4 is
liable to each aggrieved employee who suffers an employment loss
as a result of the closing or layoff for:
(1) back pay for each day of violation at a rate of
compensation not less than the higher of:
(i) the average regular rate received by the
employee during the last three years of the employee's
employment; or
(ii) the final regular rate received by the
employee; and
(2) benefits under an employee benefit plan, including
the cost of medical expenses incurred during the employment
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loss that would have been covered under an employee benefit
plan if the employment loss had not occurred.
(b) Calculation of liability.--Liability shall be calculated
for the period of the violation up to a maximum of 60 days but
in no event for more than one-half the number of days the
employee was employed by the employer.
(c) Not considered remuneration.--Payments to an employee
under this section by an employer who has failed to provide the
advance notice of a facility closure required by this act or the
Federal Worker Adjustment and Retraining Notification Act
(Public Law 100-379, 29 U.S.C. Sec. 2101 et seq.) shall not be
construed as remuneration under this act. Unemployment insurance
benefits may not be denied or reduced because of the receipt of
payments related to an employer's violation of this act or the
Federal Worker Adjustment and Retraining Notification Act.
(d) Reduction of liability.--The amount for which an
employer is liable under subsection (a) shall be reduced by any:
(1) wages paid by the employer to the employee for the
period of the violation;
(2) voluntary and unconditional payment by the employer
to the employee that is not required by any legal obligation;
(3) payment by the employer to a third party or trustee,
such as premiums for health benefits or payments to a defined
contribution pension plan on behalf of and attributable to
the employee for the period of the violation;
(4) liability paid by the employer under any applicable
Federal law governing notification of mass layoffs, plant
closings or relocations;
(5) in an administrative proceeding by the secretary,
liability paid by the employer prior to the secretary's
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determination as the result of a private action brought under
this article; and
(6) in a private action brought under this act,
liability paid by the employer in an administrative
proceeding by the commissioner prior to the adjudication of
such private action.
(e) Credit.--In addition, any liability incurred under
subsection (d)(1) with respect to a defined benefit pension plan
may be reduced by crediting the employee with service for all
purposes under the plan for the period of the violation.
(f) Payment to aggrieved employees.--An employer who
violates the provisions of section 4 with respect to a
municipality shall be subject to a civil penalty of not more
than $500 for each day of the violation, except that this
penalty shall not apply if the employer pays to each aggrieved
employee the amount for which the employer is liable to that
employee within three weeks from the date the employer orders
the closing or layoff.
Section 9. Civil penalty.
(a) Failure of notice.--An employer who fails to give notice
as required by section 4 shall be subject to a civil penalty of
not more than $500 for each day of the violation. The employer
shall not be subject to a civil penalty under this section if
the employer pays to all applicable employees the amounts for
which the employer is liable under section 4 within 21 days from
the date the employer orders the mass layoff, relocation or
employment loss.
(b) Maximum penalty.--The total amount of penalties for
which an employer may be liable under this section shall not
exceed the maximum amount of penalties for which the employer
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may be liable under Federal law for the same violation.
(c) Penalty payments.--Any penalty amount paid by the
employer under Federal law shall be considered a payment made
under this article.
(d) Reduction of liability or penalty.--If an employer that
has violated this act proves to the satisfaction of the
secretary or the court that the act or omission that violated
this act was in good faith and that the employer had reasonable
grounds for believing that the act or omission was not a
violation of this act, the secretary and the court may, in its
discretion, reduce the amount of the liability or penalty
provided for in this section. In determining the amount of the
reduction, the commissioner shall consider:
(1) the size of the employer;
(2) hardships imposed on employees by the violation;
(3) efforts by the employer to mitigate the violation;
and
(4) the grounds for the employer's belief.
(e) Jurisdiction.--A person seeking to enforce liability,
including a representative of employees or a municipality
aggrieved under subsection(d)(1) or (4), may sue on his or her
own behalf or for other persons similarly situated, or both, in
any court of common pleas in which the violation is alleged to
have occurred, or in which the employer transacts business.
(f) No injunction.--The secretary shall not have the
authority to enjoin a plant closing, relocation or mass layoff
under this act.
(g) Attorney fees.--In an action under this subsection, the
court, in its discretion, may allow the prevailing party
reasonable attorney fees as part of the costs.
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(h) Definition.--As used in this section, an "aggrieved
employee" shall mean an employee who:
(1) worked for an employer that ordered a business
closing or mass layoff; and
(2) as a result of the employer's failure to comply with
section 4, did not receive timely notice directly or through
the employee's representative as required by this act.
Section 10. Procedures and other rights.
The following shall apply:
(1) The rights and remedies provided to employees by
this act are in addition to and not in lieu of any other
contractual or statutory rights and remedies of the employees
and are not intended to alter or affect those rights and
remedies, except that the period of notification required by
this act shall run concurrently with any period of
notification required by contract or by any other statute.
(2) Nothing in this act shall be read to abridge,
abrogate or restrict the right of any State or local entity
to require an employer that is receiving State or local
economic development incentives for doing or continuing to do
business in this State from being required to provide
additional or earlier notice as a condition for the receipt
of such incentives.
(3) Nothing in this act shall be read to prevent an
employer who is not required to comply with the notice
requirements of this section, to the extent possible, to
provide notice to its employees about a proposal to close a
plant or permanently reduce its work force.
Section 11. Promulgation of regulations.
The department shall promulgate such regulations as may be
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necessary to carry out the provisions of this act.
Section 12. Form of notice.
The mailing of notice to an employee's last known address or
inclusion of notice in the employee's paycheck shall be deemed
acceptable methods for fulfillment of the employer's obligation
to give notice to each affected employee under this act.
Section 13. Effective date.
This act shall take effect in 60 days.
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