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The New Hampshire WARN Act to Take Effect Next Year

  • August 11, 2009

Companies doing business in New Hampshire must pay close attention to a new state law with employer notice obligations for mass layoffs and plant closings that are more onerous than its federal counterpart.  The New Hampshire Worker Adjustment and Retraining Notification Act (“NH WARN Act”), which became law on August 10, 2009, will take effect on January 1, 2010.  It is more stringent than the federal Worker Adjustment and Retraining Notification Act (“WARN”) because it covers more private sector employers who employ workers in the state than mandated by federal  WARN. 

A key difference between the federal WARN and the NH WARN Act is that the new state legislation applies to employers with at least 75 employees in the state, as opposed to at least 100 under the federal WARN.  Additionally, failure to provide sufficient notice allows state officials to place liens on the business revenues and real and personal property of violators.

The NH WARN Act, like its federal counterpart, covers “mass layoffs” and “plant closings”.  A mass layoff is a reduction in force which results in an employment loss at a single site of employment in New Hampshire during a 30-day period for at least 250 full-time employees or at least 25 full-time employees, if they constitute 33 percent of the employer’s full-time employees.  A plant closing is the permanent or temporary shutdown of a single site of employment in the state where the shutdown results in an employment loss at the site during a 30-day period for 50 or more full-time employees.

Employers must provide 60 days’ notice before ordering a mass layoff or plant closing.  Written notice that include the elements required in the federal WARN notification must be given to:

  • Affected employees and their representatives;
  • The state Commission of Labor;
  • The state attorney general; and
  • The chief elected official of each municipality in the state within which the mass layoff or plant closing occurs.

Exceptions to the notice requirement include circumstances where:

  • The employer is a faltering company and was actively seeking capital or business which would have enabled it to avoid or postpone the layoff or closing and it reasonably and in good faith believed that giving notice of a layoff or closing would have precluded the employer from obtaining the needed capital or business.
  • The need for notice was not reasonably foreseeable.
  • The plant closing is of a temporary facility, or the closing or layoff is the result of the completion of a particular project or undertaking, and the affected employees were hired with the understanding that their employment was limited to the duration of the facility, project or undertaking.
  • The mass layoff or plant closing is necessitated by a physical calamity, natural disaster or an act of terrorism or war.
  • The layoff or closing constitutes a strike or lockout not intended to evade the NH WARN Act.

The Commissioner of Labor has the authority to determine liabilities, civil penalties and the applicability of any exceptions under the NH WARN Act.  An employer who fails to give notice before ordering a mass layoff or plant closing is liable to each employee entitled to notice who lost his or her employment for:

  • Back pay;
  • The value of the cost of any benefits the employee would have been entitled to, including cost of medical expenses incurred, that would have been covered under an employee benefit plan; and
  • Costs and reasonable attorney’s fees.

The state Department of Labor is authorized to put a lien on the business revenues and real and personal property of the employer for the employer’s liability.  The statute provides the form of notice of lien.

Employers who violate the NH WARN Act may be accessed a civil penalty of up to $2,500, and a civil penalty of up to $100 per employee for each day of noncompliance.  Any penalty amount paid by the employer under federal law will be considered a payment under state law. 

An employer may avoid the penalties if it pays to all applicable employees the amounts for which the employer is liable (for back pay, benefits, costs and reasonable attorney’s fees) within three weeks from the date the employer orders the mass layoff or plant closing.

Employers must carefully scrutinize the interplay between federal and state laws in order to determine the correct course of action.  Jackson Lewis attorneys are available to answer inquiries regarding this new law and assist employers in achieving compliance with its requirements.

©2009 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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