As we discussed in a prior alert from last April, in an effort to provide some much needed reprieve to employers in light of the COVID-19 pandemic, New Jersey passed a bill that delayed the effective date of several previously enacted amendments to New Jersey’s equivalent to the federal Worker Adjustment and Retraining Notification Act, called the Millville-Dallas Airmotive Plant Job Loss Notification Act (“NJ WARN”). Those new amendments were set to, among other things, expand the scope and coverage of the act, lengthen the notice requirements, and require mandatory severance pay. Specifically, the bill provided that those new amendments to NJ WARN would become effective on the 90th day following the termination of Executive Order 103, which declared a Public Health Emergency and State of Emergency in the State of New Jersey.
The Proverbial Clock for the Effective Date of the New Amendments to NJ WARN Will Soon Begin to Tick.
It looks like those new amendments to NJ WARN will finally become effective after all. Last Friday, May 14, 2021, Governor Phil Murphy signed Executive Order 240, which extended the public-health emergency an additional 30 days to June 13, 2021. However, in a news release from that same day, Governor Murphy announced that he will allow the emergency order to expire next month, so long as the state Legislature passes legislation to “ensure that we have the necessary tools and flexibility to continue the fight against the pandemic, including the vaccination efforts that are our highest priority.” This means that the new amendments to NJ WARN, which have been put on hold for the last 10 months, will likely become effective on September 11, 2021 – 90 days after the public-health emergency expires on June 13, 2021.
What Do Employers Need to Know about the New Amendments to NJ WARN?
NJ WARN generally requires that employers in New Jersey provide advance notice of certain events, like a mass-layoff, transfer, or closure. Here are some of the highlights from the new amendments:
- Extend the advance notice period from 60 days to 90 days;
- Require severance payments in the amount of 1 week for each year of employment to all impacted employees, instead of permitting employers to provide notice in lieu of severance;
- Expand the definition of “mass lay-off” to include any event involving the termination of employment of more than 50 employees, where previously the threshold was 500 employees or 50 or more employees comprising 33% of the workforce;
- Expand the definition of “establishment” to include all of the employer’s locations within New Jersey;
- Include all employees towards the WARN-triggering event thresholds, instead of permitting employers to exclude part-time employees working less than 20 hours per week.
Employers that fail to comply with the severance provision of the amendment must pay a penalty of an additional four weeks of pay. This right to severance cannot be waived unless a court or the Labor and Workforce Development Commissioner agrees to such waiver.
Bottom Line: Employers in New Jersey must be prepared to comply with the new amendments to NJ WARN beginning September 11, 2021.
UPDATE (6/28/2021): The 90-day period for the effective date of the new amendments to NJ WARN has not been triggered yet. On June 4, 2021, Governor Phil Murphy issued Executive Order 244, which terminated the public health emergency in New Jersey declared under Executive Order 103, but also stated that the state of emergency declared under Executive Order 103 will continue. On June 25, 2021, in a litigation challenging the enforceability of the new amendments, The ERISA Industry Committee v. Robert Asaro-Angelo, Case No. 3:20-cv-10094(BRM)(TJB), the Office of the Attorney General filed a letter rescinding the parties’ request for expedited consideration of the plaintiff’s pending summary judgment motion because the Governor’s office had confirmed that Executive Order 103 remains in effect. As such, the 90-day period for the effective date of the new amendments to NJ WARN was not triggered by Executive Order 244 (specifically, the termination of the public health emergency).