§ 860-G — Violation; liability

§ 860-g. Violation; liability. 1. An employer who fails to give notice\nas required by paragraph (a) of subdivision one of section eight hundred\nsixty-b of this article before ordering a mass layoff, relocation, or\nemployment loss is liable to each employee entitled to notice who lost\nhis or her employment for:\n (a) Back pay at the average regular rate of compensation received by\nthe employee during the last three years of his or her employment, or\nthe employee's final rate of compensation, whichever is higher.\n (b) The value of the cost of any benefits to which the employee would\nhave been entitled had his or her employment not been lost, including\nthe cost of any medical expenses incurred by the employee that would\nhave been covered under an employee benefit plan.\n 2. Back pay and other liability under this section is calculated for\nthe period of the employer's violation, up to a maximum of sixty days,\nor one-half the number of days that the employee was employed by the\nemployer, whichever period is smaller.\n 3. Payments to an employee under this section by an employer who has\nfailed to provide the advance notice of a facility closure required by\nthis article or the federal Worker Adjustment and Retraining\nNotification Act (29 U.S.C. Sec. 1201 et seq.) shall not be construed as\nremuneration under article eighteen of this chapter. Unemployment\ninsurance benefits under article eighteen of this chapter may not be\ndenied or reduced because of the receipt of payments related to an\nemployer's violation of this article or the federal Worker Adjustment\nand Retraining Notification Act.\n 4. The amount of an employer's liability under subdivision one of this\nsection, shall be reduced by the following:\n (a) Any wages, except vacation moneys accrued before the period of the\nemployer's violation, paid by the employer to the employee during the\nperiod of the employer's violation.\n (b) Any voluntary and unconditional payments made by the employer to\nthe employee that were not required to satisfy any legal obligation.\n (c) Any payments by the employer to a third party or trustee, such as\npremiums for health benefits or payments to a defined contribution\npension plan, on behalf of and attributable to the employee for the\nperiod of the violation.\n (d) Any liability paid by the employer under any applicable federal\nlaw governing notification of mass layoffs, plant closings, or\nrelocations.\n (e) In an administrative proceeding by the commissioner, any liability\npaid by the employer prior to the commissioner's determination as the\nresult of a private action brought under this article.\n (f) In a private action brought under this article, any liability paid\nby the employer in an administrative proceeding by the commissioner\nprior to the adjudication of such private action.\n 5. Any liability incurred by an employer under subdivision one of this\nsection with respect to a defined benefit pension plan may be reduced by\ncrediting the employee with service for all purposes under such a plan\nfor the period of the violation.\n 6. If an employer proves to the satisfaction of the commissioner that\nthe act or omission that violated this article was in good faith and\nthat the employer had reasonable grounds for believing that the act or\nomission was not a violation of this article, the commissioner may, in\nhis or her discretion, reduce the amount of liability provided for in\nthis section. In determining the amount of such reduction, the\ncommissioner shall consider (a) the size of the employer; (b) the\nhardships imposed on employees by the violation; (c) any efforts by the\nemployer to mitigate the violation; and (d) the grounds for the\nemployer's belief.\n 7. An aggrieved employee, local government, or an employee\nrepresentative seeking to establish liability against an employer may\nbring a civil action on behalf of the person, other persons similarly\nsituated, or both, in any court of competent jurisdiction, within the\ntime period provided by section two hundred thirteen of the civil\npractice law and rules. The court may award reasonable attorneys' fees\nas part of costs to any plaintiff who prevails in a civil action brought\nunder this article. If the court determines that an employer conducted a\nreasonable investigation in good faith, and had reasonable grounds to\nbelieve that its conduct was not a violation of this article, the court\nmay reduce the amount of any penalty it would otherwise impose against\nthe employer under this article.\n 8. Neither the commissioner nor any court shall have the authority to\nenjoin a plant closing, relocation, or mass layoff under this article.\n