NY Lab L § 860-G (2021)
2021 New York Laws LAB - Labor Article 25-A - New York State Worker Adjustment and Retraining Notification Act 860-G - Violation; Liability.

§ 860-g. Violation; liability. 1. An employer who fails to give notice as required by paragraph (a) of subdivision one of section eight hundred sixty-b  of  this  article before ordering a mass layoff, relocation, or employment loss is liable to each employee entitled to notice  who  lost his or her employment for:  (a)  Back  pay at the average regular rate of compensation received by the employee during the last three years of his or  her  employment,  or the employee's final rate of compensation, whichever is higher.  (b)  The value of the cost of any benefits to which the employee would have been entitled had his or her employment not  been  lost,  including the  cost  of  any  medical expenses incurred by the employee that would have been covered under an employee benefit plan.   2. Back pay and other liability under this section is  calculated  for the  period  of the employer's violation, up to a maximum of sixty days, or one-half the number of days that the employee  was  employed  by  the employer, whichever period is smaller.   3.  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   article   or   the   federal  Worker  Adjustment  and  Retraining Notification Act (29 U.S.C. Sec. 1201 et seq.) shall not be construed as remuneration  under  article  eighteen  of  this  chapter.  Unemployment insurance  benefits  under  article  eighteen of this chapter may not be denied or reduced because of the  receipt  of  payments  related  to  an employer's  violation  of  this article or the federal Worker Adjustment and Retraining Notification Act.   4. The amount of an employer's liability under subdivision one of this section, shall be reduced by the following:  (a) Any wages, except vacation moneys accrued before the period of the employer's violation, paid by the employer to the  employee  during  the period of the employer's violation.  (b)  Any  voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation.  (c) Any payments 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.  (d)  Any  liability  paid by the employer under any applicable federal law  governing  notification  of  mass  layoffs,  plant   closings,   or relocations.  (e) In an administrative proceeding by the commissioner, any liability paid  by  the  employer prior to the commissioner's determination as the result of a private action brought under this article.  (f) In a private action brought under this article, any liability paid by the employer in an  administrative  proceeding  by  the  commissioner prior to the adjudication of such private action.   5. Any liability incurred by an employer under subdivision one of this section with respect to a defined benefit pension plan may be reduced by crediting  the  employee with service for all purposes under such a plan for the period of the violation.   6. If an employer proves to the satisfaction of the commissioner  that the  act  or  omission  that violated this article was in good faith and that the employer had reasonable grounds for believing that the  act  or omission  was  not a violation of this article, the commissioner may, in his or her discretion, reduce the amount of liability  provided  for  in this   section.  In  determining  the  amount  of  such  reduction,  the commissioner shall consider (a)  the  size  of  the  employer;  (b)  the hardships  imposed on employees by the violation; (c) any efforts by the  employer to  mitigate  the  violation;  and  (d)  the  grounds  for  the employer's belief.   7.   An   aggrieved   employee,   local  government,  or  an  employee representative seeking to establish liability against  an  employer  may bring  a  civil  action on behalf of the person, other persons similarly situated, or both, in any court of competent  jurisdiction,  within  the time  period  provided  by  section  two  hundred  thirteen of the civil practice law and rules. The court may award reasonable  attorneys'  fees as part of costs to any plaintiff who prevails in a civil action brought under this article. If the court determines that an employer conducted a reasonable  investigation  in  good faith, and had reasonable grounds to believe that its conduct was not a violation of this article, the  court may  reduce  the amount of any penalty it would otherwise impose against the employer under this article.   8. Neither the commissioner nor any court shall have the authority  to enjoin a plant closing, relocation, or mass layoff under this article.