On Jan. 10, Gov. Phil Murphy signed legislation implementing amendments to the Millville Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN Act”) that were placed on hold during the COVID-19 pandemic. The amendments, which go into effect on April 10, 2023, impose new requirements on employers of 100 or more who implement mass layoffs or plan closures.
Governor Murphy signed an amended NJ WARN Act on Jan. 21, 2020, which was initially scheduled to take effect on July 20, 2020. However, in April 2020, the Governor signed Executive Order 103 declaring COVID-19 a public health emergency and postponing the effective date of NJ WARN Act amendments until 90 days after the conclusion of the state of emergency. Although the COVID-19 state of emergency remains in effect, the Legislature “unlinked” the amended NJ WARN Act from the state of emergency, thus permitting the implementation of the amendments to take effect on April 10, 2023.
The NJ WARN Act amendments impose significant obligations on New Jersey employers that far exceed the requirements of the original Act and the federal WARN Act. Here are key takeaways that employers need to consider.
In addition, the amendments contain language stating that the 50-or-more-employees calculation must include not only those employees working at a New Jersey establishment but those “reporting to” the establishment. Plaintiffs’ attorneys are expected to argue that this means that any remote or field employees reporting into New Jersey locations must count towards the 50 or more employees needed for a triggering event. This open issue will likely need to be resolved through litigation.
The current law only applies to mass layoffs in a single establishment, which may be a single location or group of contiguous locations, including industrial parks. The amendment dispenses with the single facility concept, and “establishment” now collectively includes all the employer’s locations within the state, excluding temporary construction sites. Employers with multiple small facilities scattered throughout the state may now be covered. Thus, for example, a company with operations at five separate locations, with a loss of at least 10 employees (whether full-time or part-time) at each location, arguably may be subject to the notice-and-severance-pay requirements. Whether the legislature intended such a broad definition is another issue that remains unresolved, thereby posing tremendous risk to employers if they are incorrect in their interpretation of the amended Act.
Considering the looming changes brought on by the NJ WARN ACT amendments, employers must keep in mind the expanded coverage of the Act, the longer notice requirements, and the mandatory severance pay obligations when contemplating mass layoffs, plant closures or a transfer of operations outside the state.
Lisa Gingeleskie is a partner with Lindabury, McCormick, Estabrook & Cooper, P.C. (www.lindabury.com), based in Westfield, NJ. She concentrates her practice in the areas of labor and employment law as well as ERISA and employee benefits law. She can be reached at firstname.lastname@example.org.
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