N.Y. Labor Law § 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.