SB 40 – FINAL VERSION
SENATE BILL 40
SPONSORS: Sen. DeVries, Dist 18; Sen. Hassan, Dist 23; Sen. Barnes, Jr., Dist 17; Sen. Cilley, Dist 6; Sen. D'Allesandro, Dist 20; Sen. Fuller Clark, Dist 24; Sen. Gallus, Dist 1; Sen. Gilmour, Dist 12; Sen. Houde, Dist 5; Sen. Janeway, Dist 7; Sen. Kelly, Dist 10; Sen. Larsen, Dist 15; Sen. Lasky, Dist 13; Sen. Merrill, Dist 21; Sen. Odell, Dist 8; Sen. Reynolds, Dist 2; Sen. Roberge, Dist 9; Sen. Sgambati, Dist 4; Rep. R. Holden, Hills 7; Rep. Craig, Hills 9; Rep. Nixon, Hills 17; Rep. Bishop, Rock 2; Rep. M. Smith, Straf 7
COMMITTEE: Commerce, Labor and Consumer Protection
This bill requires advance notice in cases of certain plant closings and mass layoffs.
This bill was requested by the department of labor.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nine
AN ACT relative to protecting workers and local governments with advance notice of impending plant closings and layoffs.
Be it Enacted by the Senate and House of Representatives in General Court convened:
325:1 New Chapter; New Hampshire Worker Adjustment and Retraining Notification Act. Amend RSA by inserting after chapter 275-E the following new chapter:
NEW HAMPSHIRE WORKER ADJUSTMENT
AND RETRAINING NOTIFICATION ACT
275-F:1 Statement of Purpose. The purpose of this chapter is to protect workers of the state by requiring advance notification of significant employment losses and by providing a means for workers to seek a remedy through administrative procedure. The legislature finds that advance notice of a major employment loss event allows all levels of government to prepare to help a sudden large number of affected workers. The legislature also finds that, while the United States already has a federal WARN Act, the state of New Hampshire should enforce its own program to allow quicker administrative determinations and enforcement. This purpose is enhanced by allowing the state of New Hampshire to pursue claims on behalf of employees affected by violations of RSA 275-F and asserting liens against the assets of employers who have liability under RSA 275-F.
275-F:2 Definitions. In this chapter:
I. “Affected employees” means employees who may reasonably be expected to experience employment loss as a consequence of a proposed plant closing or mass layoff by their employer.
II. “Commissioner” means the commissioner of labor acting through the powers and personnel of RSA 273.
III. “Department” means the department of labor.
IV.(a) “Employer” means any business enterprise that employs in New Hampshire:
(1) Seventy-five or more employees, excluding part-time employees; or
(2) Seventy-five or more employees who in the aggregate work at least 3,000 hours per week, exclusive of hours of overtime.
(b) For purposes of this chapter, any entity that directly or indirectly owns and operates a business enterprise in New Hampshire that satisfies the criteria in subparagraph IV(a) is an employer.
V.(a) “Employment loss” means:
(1) An employment termination, other than a discharge for cause, voluntary departure, or retirement;
(2) A layoff exceeding 6 months; or
(3) A reduction in hours of work of more than 50 percent during each month of any 6-month period.
(b) “Employment loss” shall not mean a plant closing or layoff that is the result of the relocation or consolidation of part or all of the employer’s business if, before the closing or layoff, the employer offers to transfer the employee to a different site of employment within a reasonable commuting distance with no more than a 6-month break in employment, or the employer offers to transfer the employee to any other site of employment, regardless of distance, with no more than a 6-month break in employment, and the employee accepts within 30 days of the offer, closing, or layoff, whichever is later.
VI. “Mass layoff” means a reduction in force which:
(a) Is not the result of a plant closing; and
(b) Results in an employment loss at a single site of employment in New Hampshire during any 30-day period for at least 250 employees, excluding any part-time or seasonal employees, or at least 25 employees, excluding any part-time or seasonal employees, if they constitute 33 percent of the full-time employees of the employer.
VII. “Part-time employee” means an employee who is employed for an average of fewer that 20 hours per week or who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required.
VIII. “Plant closing” means the permanent or temporary shutdown of a single site of employment in New Hampshire, or one or more facilities or operating units within a single site of employment in New Hampshire, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees, excluding any part-time employees.
IX. “Representative” means an exclusive representative of employees within the meaning of 29 U.S.C. section 159(a).
X. “Seasonal employee” means an employee who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required, or an employee hired with the understanding that his or her employment was limited to the duration of a particular project or undertaking.
I. No employer shall order a mass layoff or plant closing unless 60 days before the order takes effect the employer gives written notice of the order to:
(a) Affected employees and representatives of affected employees;
(b) The commissioner, who shall notify additional governmental units as appropriate;
(c) The New Hampshire attorney general; and
(d) The chief elected official of each municipality in New Hampshire within which the plant closing or mass layoff occurs.
II. Any employer required to give notice of any mass layoff or plant closing under this chapter shall include in its notice the elements required by the Worker Adjustment and Retraining Notification Act, 29 U.S.C. section 2101 et seq.
III. The mailing of notice to an employee’s last known address or inclusion of notice in the employee’s paycheck shall be considered acceptable methods for notice to each affected employee under this chapter.
IV. If an employer sells all or part of its business, the seller shall be responsible for providing notice for any plant closing or mass layoff under this section, up to and including the effective date of the sale. After the effective date of the sale of part or all of an employer’s business, the purchaser shall be responsible for providing notice for any plant closing or mass layoff under this section. Notwithstanding any other provision of this chapter, any person who is a full-time employee of the seller, other than a part-time employee, as of the effective date of the sale shall be considered an employee of the purchaser immediately after the effective date of the sale.
V. The rights and remedies of employees under this chapter are in addition to any other contractual, statutory, or common law rights and remedies of the employees, and are not intended to alter or affect such rights and remedies, except that the period of notification required by this chapter shall run concurrently with any period of notification required by contract or by any other law.
I. In a mass layoff or plant closing, an employer is not required to comply with the notice requirement of RSA 275-F:3 if:
(a) The employer is a faltering company and at the time that notice would have been required, the employer was actively seeking capital in the form of loans, or the issuance of stocks, bonds, or other methods of internally generated financing, or additional money, credit, or business through a commercially reasonable method which opportunities were objectively realistic; and
(1) The capital or business sought, if obtained, would have enabled the employer to avoid or postpone the mass layoff or plant closing; and
(2) The employer reasonably and in good faith believed that giving the notice required by RSA 275-F:3 would have precluded the employer from obtaining the needed capital or business; or
(b) The need for notice was not reasonably foreseeable at the time the notice would have been required; or
(c) The plant closing is of a temporary facility or the plant closing or mass 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; or
(d) A mass layoff or plant closing is necessitated by a physical calamity, natural disaster, or an act of terrorism or war; or
(e) The closing or layoff constitutes a strike or lockout not intended to evade the requirements of this chapter. Nothing in this chapter shall require an employer to serve written notice when permanently replacing a person who is deemed to be an economic striker under the National Labor Relations Act, 29 U.S.C. section 151 et seq. Nothing in this chapter shall validate or invalidate any judicial or administrative ruling relating to the hiring of permanent replacements for economic strikers under the National Labor Relations Act.
II. An employer relying on such exceptions shall provide as much notice as is practicable and at that time shall provide a complete statement of the basis for reducing the notification period.
275-F:5 Extension of Layoff Period. A layoff of more than 6 months which, at its outset, was announced to be a layoff of 6 months or less shall be treated as an employment loss under this chapter unless:
I. The extension beyond 6 months is caused by business circumstances, including unforeseeable changes in price or cost, not reasonably foreseeable at the time of the initial layoff; and
II. Notice is given at the time it becomes reasonably foreseeable that the extension beyond 6 months will be required.
275-F:6 Determinations with Respect to Employment Loss. In determining whether a plant closing or mass layoff has occurred or will occur, employment losses for 2 or more groups at a single site of employment, each of which is less than the minimum number of employees specified in RSA 275-F:2, VI or RSA 275-F:2, VIII but which in the aggregate exceed that minimum number, and which occur within any 90-day period shall be considered to be a plant closing or mass layoff unless the employer demonstrates that the employment losses are the result of separate and distinct actions and causes and are not an attempt by the employer to evade the requirements of this chapter.
275-F:7 Authority of the Commissioner.
I. The commissioner shall have the authority to determine any liabilities or civil penalties under RSA 275-F:8 and RSA 275-F:9 and the applicability of any exceptions under RSA 275-F:4.
II. The commissioner shall have the authority to examine the books and records of an employer, but only to the extent necessary to administer the provisions of this chapter.
III. To determine whether the employer was actively seeking capital or business, or that the need for notice was not reasonably foreseeable under RSA 275-F:4, I(b) the employer shall make available to the department, upon request:
(a) A written record of documents relevant to the determination of whether the employer was actively seeking capital or business, or that the need for notice was not reasonably foreseeable; and
(b) An affidavit verifying the contents of the documents contained in the record.
IV. Except as provided in this section, information obtained from any employer subject to this chapter regarding the material provided and the books, records, or wages paid to workers during the investigation of possible violations of this chapter, shall be confidential, shall not be disclosed to employees or their representatives, shall not be used in any court in any pending action or proceeding, and shall not be admissible in evidence in any action or proceeding other than one arising out of this chapter.
V. The commissioner shall adopt rules under RSA 541-A relative to the administration and enforcement of this chapter.
VI. The commissioner may hold in trust any proceeds from a lien filed under RSA 275-F:8 pending adjudication of any claims to the proceeds by an employer. Following the final adjudication of such claims, the commissioner shall distribute any proceeds from the lien on a pro rata basis to the employees of the employer or employers against whose business revenues and real and personal property the lien was obtained.
I. Any employer who fails to give notice under RSA 275-F:3 before ordering a mass layoff or plant closing 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 3 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.
(c) Costs and reasonable attorney’s fees.
(d)(1) The department shall have a lien upon the business revenues and all real and personal property of the employer for the employer’s liability under this paragraph. In order for such lien to be valid and effective against the employer’s interest in real property, the department shall record a notice of lien in each county in which the employer holds an interest in real property. In order for such lien to be perfected and valid against business revenues, and personal property of the employer, the department shall record a notice of lien in the office designated in Article 9 of the Uniform Commercial Code as adopted in New Hampshire (RSA 382-A:9-101 et seq).
(2) The notice of lien shall be in the form of the following:
NOTICE OF LIEN PURSUANT TO
NH RSA 275-F:8, I(d)
NOTICE is hereby given that the New Hampshire department of labor claims a lien against [name and address of employer] pursuant to NH RSA 275-F:8, I(d) for liabilities arising under NH RSA 275-F:8 I(d) in the aggregate amount of $___________.
In accordance with NH RSA 275-F:8, I(d), this notice shall be recorded with _______________ and shall constitute a lien against property of the employer identified above.
Dated this ____day of ________, 20 .
STATE OF NEW HAMPSHIRE
DEPARTMENT OF LABOR
(3) The notice of lien shall constitute a lien of the department that is effective as of the date and time of the recording or filing.
(4) The department shall send a copy of the notice of lien to the employer by certified mail, return receipt requested, postage prepaid.
II. Liability shall be calculated for the period of the employer’s violation, up to a maximum of 60 days, or 1/2 the number of days that the employee was employed by the employer, whichever period is smaller.
III. The amount of an employer’s liability under paragraph I shall be reduced by:
(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; and
(d) Any liability paid by the employer to the employee under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. section 2101 et seq.
IV. Any liability incurred by an employer under paragraph I 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.
V. The amount of an employer’s liability under paragraph I shall not affect and is not affected by the employee’s receipt of unemployment benefits administered by the New Hampshire department of employment security.
VI. If an employer proves to the satisfaction of the commissioner that the act or omission that violated this chapter was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this chapter, the commissioner may in his or her discretion reduce the amount of liability provided for in this section.
VII. Whenever the attorney general has reason to believe that an employer is violating or is about to violate this act, the attorney general may petition the court for an order of restitution of money or property to any person or class of persons injured thereby. The action may be brought in the superior court of the county in which the employer allegedly in violation of this act resides or in which the principal place of business is located, or in the superior court of Merrimack county. Under this chapter, the state courts shall not have authority to enjoin a plant closing or mass layoff.
VIII. In addition to asserting the lien as provided in subparagraph I(d), the state of New Hampshire, through the department, shall be deemed to be a creditor under RSA 545-A for the liability of the employer as determined under paragraph I and may assert claims pursuant to RSA 545-A:4 and RSA 545-A:5, as applicable, and shall have the remedies set forth in RSA 545-A for such claims under RSA 545-A which are established by the state.
IX. An action to recover the back pay, benefits, costs, and attorneys fees and other moneys for which an employer may be liable under this chapter may be maintained against any employer by any one or more employees for and on behalf of the employee and any other employees similarly situated. Any labor organization may also maintain an action on behalf of its members. The action may be brought in the superior court of the county in which the employer allegedly in violation of the action resides or in which the principal place of business is located, or in the superior court of Merrimack county. Any action brought under this paragraph shall be consolidated with any action brought by the attorney general against the same employer or employers under paragraph VII.
275-F:9 Civil Penalty.
I. An employer who fails to give notice as required by RSA 275-F:3, I(b) may be assessed a civil penalty of up to $2,500; in addition, such an employer may be assessed a civil penalty of up to $100 per employee for each day of noncompliance. The employer is not subject to a civil penalty under this section if the employer pays to all applicable employees the amounts for which the employer is liable under RSA 275-F:8 within 3 weeks from the date the employer orders the mass layoff or plant closing. All such civil penalties collected shall be deposited in the state’s general fund.
II. Any penalty amount paid by the employer under federal law shall be considered a payment under this chapter.
III. If an employer proves to the satisfaction of the commissioner that the act or omission that violated this chapter was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this chapter, the commissioner may in his or her discretion reduce the amount of the penalty provided for in this section.
275-F:10 Appeal. Any party may appeal a finding of employer liability or civil penalty under RSA 541.
275-F:11 Notice to Employers. Before September 30 of each year, the department, with the cooperation of the department of employment security, shall issue a written notice to each employer that the employer may be subject to this chapter and shall advise the employer of the requirements of this chapter and the remedies provided for violations.
275-F:12 Interpretation. Whenever possible, this chapter shall be interpreted in a manner consistent with the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. section 2101 et seq. and the federal regulations and court decisions interpreting that to the extent the provisions of federal and state law are the same.
325:2 Effective Date. This act shall take effect January 1, 2010.
Approved: August 10, 2009
Effective Date: January 1, 2010