2023 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.