Effective April 10, covered New Jersey employers must comply with new requirements under the New Jersey mini-WARN Act. New Jersey will join New York and Maine as one of three jurisdictions where employers are required to provide 90 days’ advanced notice to affected employees. (See our prior blog here).

Key changes to NJ-WARN include the following:

• The employers covered by NJ-WARN has been expanded by the amendments, to include any employer who employs 100 or more employees, whether full-time or not (previously it required employment of 100 or more full-time employees).
• The threshold for a “mass layoff” triggering NJ-WARN has been reduced significantly. Under the amended law, a “mass layoff” means the termination of 50 or more employees at a covered establishment in a 30-day period. Previously, a mass layoff meant (i) the termination of 50 or more employees comprising 1/3 of the workforce at the establishment, or (ii) the termination of 500 or more employees.
• The scope of employees that count toward the 50-employee threshold for a “mass layoff” has been expanded:
  • Both employees “at” the establishment and “reporting to” the establishment are counted, which may include remote employees in New Jersey as well as other states. Prior to the amendments, the threshold for a mass layoff included 50 or more employees “at” the establishment.
  • Both part-time and full-time employees must be counted toward the threshold. Previously, only full-time employees counted toward the threshold.

• The definition of a covered “establishment” has been expanded to include a non-contiguous group of locations / facilities of an employer within the State (previously it applied to contiguous worksites / office parks of an employer). Based on the amendment’s legislative history, this appears to be aimed at retail companies with multiple locations in the State. However, it is unclear how this could apply to largely or entirely remote workforces, and how it “squares” with the inclusion of remote, out of state, employees in the 50 employee threshold.
• Covered employers will be required to provide at least 90 days’ notice (as opposed to the prior 60 days’ notice) before the first termination of employment occurs in connection with a termination or transfer of operations, or mass layoff. If the employer fails to provide 90 days’ notice, the employer is required to provide the terminated employee with four weeks of pay (which is a new requirement) in addition to statutory severance (see next bullet point).
• In addition to notice, covered employers will be required to provide severance pay equal to one week of pay for each full year of employment to each terminated employee. (Previously, the law required one week of severance pay for each year worked only if the employer failed to provide the required 60 days’ notice.)

Overall review of NJ-WARN amendments

Here’s a quick review of what will be required once the amendments take effect.

Triggering events

NJ-WARN applies to employers with 100 or more employees anywhere in the US, when:

• A covered establishment transfers or terminates operations which results, during any continuous period of not more than 30 days, in the termination of 50 or more employees; or
• An employer conducts a mass layoff (i.e., termination of 50 or more employees in a 30-day period) at a covered establishment.

Terminations for cause or poor performance excluded

Although NJ-WARN’s “termination of employment” definition excludes (1) voluntary departures, (2) retirement, and (3) terminations for misconduct, the statute does not clearly specify whether ordinary terminations for cause or poor performance can trigger its requirements. But our research into NJ-WARN’s legislative history strongly suggests that terminations for cause or poor performance are not covered by NJ-WARN. In the February 27, 2006 New Jersey Assembly Labor Committee hearing, NJ-WARN’s lead senate sponsor clarified that the legislation was not intended to apply to employees terminated for poor performance.

Note on aggregation

Under the new amendments, an employer whose layoff decision affects employees at multiple New Jersey worksites may be subject to NJ-WARN’s notice and severance requirements even if less than 50 employees are terminated at each individual worksite.

To determine whether a termination or transfer of operations or mass layoff is subject to NJ-WARN’s notification requirements, employers generally must aggregate any terminations of employment for two or more groups at a single “establishment” occurring within any 90-day period. If the aggregate number of terminations of all the groups is 50 or more, then the terminations are subject to NJ-WARN’s notice and severance requirements (unless the employer can demonstrate that each group’s cause of terminations is separate and distinct from the other groups’ causes). And since the definition of an “establishment” has been expanded to include an employer’s non-contiguous group of locations / facilities within New Jersey, multi-site employers should consider the aggregate impact of any layoff decision affecting multiple worksites.

Remote workforce

NJ-WARN’s updated “mass layoff” and “establishment” definitions have also created some ambiguity regarding the statute’s application to remote employees. Specifically, a “mass layoff” now includes employees “at or reporting to” the “establishment.” And since “establishment” has been amended to include “a group of locations,” there is an argument that terminated remote employees should be counted for purposes of determining NJ-WARN applicability. But the legislative history of the NJ-WARN amendments suggests the changes were aimed at retail companies with multiple locations in New Jersey, and therefore NJ-WARN’s application to remote employees remains unclear.…

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