HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 180
49th legislature - STATE OF NEW MEXICO - second session, 2010
AN ACT
RELATING TO LABOR; ENACTING THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Worker Adjustment and Retraining Notification Act".
Section 2. DEFINITIONS.--As used in the Worker Adjustment and Retraining Notification Act:
A. "affected local government" means the governmental entity that has jurisdiction over the site where a mass layoff occurred;
B. "employee" means a person who reasonably expects to experience employment loss as a consequence of a proposed mass layoff, worksite closing or transfer of operations undertaken by the employee's employer or who experiences employment loss as a foreseeable result of downsizing, a proposed mass layoff, a worksite closing or a transfer of operations. "Employee" includes a home-based employee who may not work at the worksite but reports to the worksite or who supervises one or more employees who do not work at the worksite;
C. "employer" means a business enterprise that employs one hundred or more employees within New Mexico, including part-time employees, and including the parent corporation of a corporate subsidiary that directly owns and operates a business. An employer may include a corporation that succeeds the employer when circumstances indicate that the corporation is a continuation of the operations of the employer. Factors to consider in determining whether a successor corporation is a continuation of the employer's operations include its proximity to the closing of the employer's operations and whether it has common ownership, business purposes, products or services, workforce, facilities, plant, equipment or management structure;
D. "employment loss" means:
(1) an employment termination other than a discharge for cause or voluntary departure; or
(2) a layoff exceeding four months;
E. "mass layoff" means a reduction in force that:
(1) is not the result of a worksite closing or transfer of operations; and
(2) results in an employment loss of twenty-five or more employees, including part-time employees, at a worksite during any thirty-day period;
F. "representative" means an exclusive representative of employees as defined in Section 9(a) of the federal National Labor Relations Act, 29 U.S.C. Section 151 et seq., and the federal Railway Labor Act, 45 U.S.C. Section 151 et seq.;
G. "transfer of operations" means the removal of all or substantially all of the operations of a worksite to a different location at least fifty miles away that results in employment loss to twenty-five or more persons, including part-time workers; and
H. "worksite closing" means the permanent or temporary shutdown of a worksite, or one or more facilities or operating units, that will result in an employment loss for twenty-five or more persons, including part-time employees.
Section 3. NOTIFICATION TO EMPLOYEES REQUIRED.--
A. An employer shall give notification of at least sixty days before the date of an order for a mass layoff, worksite closing or transfer of operation. Notification shall be given to:
(1) each employee;
(2) each representative of an employee;
(3) local work force investment boards established pursuant to the federal Workforce Investment Act of 1998 for the locality within which the mass layoff, worksite closing or transfer of operations is to occur;
(4) the chief elected official of the unit of local government within which the mass layoff, worksite closing or transfer of operations will occur; and
(5) the state dislocated worker unit.
B. Individual employment losses shall be aggregated to determine whether the following conditions necessary to require notification pursuant to the Worker Adjustment and Retraining Notification Act have been met:
(1) within a one-hundred-eighty-day period, individual employment losses occur at a single worksite for two or more groups of employees and one group has less than the minimum number of employees; and
(2) the employer fails to demonstrate that the employment losses arise from separate and distinct causes.
C. Pursuant to the Worker Adjustment and Retraining Notification Act, the seller of a business is responsible for the notification required pursuant to this section up to and including the effective date of sale, and the purchaser of a part of or the entirety of the business is responsible thereafter. Notwithstanding any other provision of the Worker Adjustment and Retraining Notification Act, a person considered an employee of the seller shall also be considered an employee of the purchaser on the effective date of sale.
D. Mailing to an employee's last known address by first class or certified mail or inclusion of notification in an employee's paycheck shall be considered as fulfillment of the employer's obligations to give notification to an employee pursuant to the Worker Adjustment and Retraining Notification Act.
E. An employee who voluntarily leaves the company during the notice period in anticipation of a mass layoff, worksite closing or transfer of operations shall be counted toward all minimum numerical thresholds.
Section 4. REQUIRED CONTENT OF NOTIFICATION.--A notification distributed pursuant to the Worker Adjustment and Retraining Notification Act shall include a statement of:
A. the number of employees whose employment is to be terminated in connection with the mass layoff, worksite closing or transfer of operations and the date or dates on which the mass layoff, worksite closing or transfer of operations shall begin;
B. the reasons for the mass layoff, worksite closing or transfer of operations;
C. the job description, address, pay, benefits, terms and conditions of employment for work available at any other operation of the employer; and
D. employee rights with respect to wages, severance pay, benefits, pension or other terms of employment related to the termination, including rights based on a collective bargaining agreement or other existing employer policy.
Section 5. EXEMPTIONS TO NOTIFICATION REQUIREMENTS AND REDUCED NOTIFICATION.--
A. The notification provisions of the Worker Adjustment and Retraining Notification Act do not apply if:
(1) a mass layoff, worksite closing or transfer of operations involves a temporary facility or is the result of a completion of a facility, project or undertaking in which employees were advised that employment was limited to the duration of the facility, project or undertaking;
(2) a mass layoff, worksite closing or transfer of operations is caused by business circumstances that were not reasonably foreseeable at the time the notification would have been required;
(3) a mass layoff, worksite closing or transfer of operations is caused by any form of physical calamity, natural disaster or act of war; or
(4) the employer was actively seeking capital or business that would have enabled the employer to avoid or postpone a mass layoff, worksite closing or transfer of operations and the employer reasonably and in good faith believed that giving the required notification would have precluded the employer from obtaining the needed capital or business.
B. An employee who, prior to the layoff, closing or a transfer, has been offered a reassignment to a different worksite within a reasonable commuting distance, with no more than a one-month break in employment or an employee who, prior to the layoff, closing or transfer, has been offered a reassignment to a different worksite, regardless of commuting distance, with no more than a two-month break in employment is not entitled to notification pursuant to this section if the employee accepts the reassignment within thirty days of the offer or of the layoff, closing or transfer, whichever is later.
C. An employer relying on this section shall give as much notification as is practicable and, at that time, shall give a brief statement of the basis for reducing the notification period.
Section 6. COMPLAINTS--ADMINISTRATIVE PROCEDURES.--
A. An employee may file a complaint with the attorney general within one hundred eighty days of an alleged violation of the Worker Adjustment and Retraining Notification Act. The employee shall not proceed with another civil action unless one hundred eighty days have passed since the filing of a complaint pursuant to the Worker Adjustment and Retraining Notification Act and the employee has filed a request to withdraw the complaint with the attorney general before filing a civil suit in district court.
B. The attorney general shall develop rules and procedures for complaint investigation. The rules and procedures may authorize:
(1) an examination of the books and records of an employer; and
(2) holding in trust any proceeds from a lien pending adjudication of claims to proceeds by the employer.
Section 7. PENALTIES--LIABILITY.--
A. An employer who violates the provisions of the Worker Adjustment and Retraining Notification Act shall be liable to each employee for:
(1) double back pay for each calendar day of the violation up to a maximum of sixty days at the employee's rate of compensation, which is the average regular rate received by the employee during the last three years of employment or the final regular rate received by the employee, whichever is higher. These damages are limited to each calendar day of violation, up to a maximum of sixty days, in which the employee remained unemployed and the difference in rates of pay and benefits between the wages and benefits earned between the lost and new employment;
(2) the value of benefits from the employer's employee benefit plan during the notification period, including the cost of medical expenses incurred during the employment loss that would have been covered under an employee benefit plan if the employment loss had not occurred;
(3) other economic and exemplary damages suffered by an employee and proved by a preponderance of the evidence to have been caused by the employer's violation of the provisions of the Worker Adjustment and Retraining Act; and
(4) reasonable attorney fees and costs for the employee who prevails in court.
B. The attorney general and an affected local government may bring a civil action in district court; the attorney general may bring suit on behalf of the state, the local government and an employee; and a local government may bring suit on its own behalf or on behalf of an employee. Before an affected local government brings suit, it shall provide the attorney general with sixty days' notice of the intended suit. If the attorney general does not bring a suit during this time period, the attorney general shall not file a suit or recover any damages except for those listed in Paragraph (3) of Subsection C of this section.
C. An employer that violates the provisions of the Worker Adjustment and Retraining Notification Act is liable to the state or affected local government but not liable to more than one governmental entity for damages under this section, for:
(1) five hundred dollars ($500) per day for each calendar day of the violation multiplied by the number of employees who suffered an employment loss as a result of the employer's failure to provide timely notification to a state official or agents of state government and a designated local government official;
(2) one thousand dollars ($1,000) per day for each calendar day of the violation multiplied by the number of employees who suffered an employment loss if the employer acted in bad faith through intentional, willful or reckless conduct in violation of the provisions of the Worker Adjustment and Retraining Notification Act or to avoid application of that act; and
(3) repayment of any tax breaks, business loans, subsidies or other incentives the employer received from the state or affected local government to operate a business at a location where the mass layoff occurred during the twelve months preceding the mass layoff.
D. The attorney general has a valid lien upon business revenues and all real and personal property of the employer for a violation of the Worker Adjustment and Retraining Notification Act; provided that the attorney general records a notice of lien in each county in New Mexico in which the employer holds an interest in real property. In order to perfect the lien against business revenues and personal property of the employer, the attorney general shall record a notice of lien in the office designated in Article 9 of the Uniform Commercial Code. The notice of lien shall constitute a lien of the attorney general that is effective as of the date and time of the recording or filing. The attorney general shall send a copy of the notice of lien to the employer by certified mail, return receipt requested, postage prepaid, in the following form:
NOTICE OF LIEN PURSUANT TO THE WORKER ADJUSTMENT AND
RETRAINING NOTIFICATION ACT
NOTICE is hereby given that the attorney general of the state of New Mexico claims a lien against (name and address of employer) pursuant to the Worker Adjustment and Retraining Notification Act for liabilities arising under that act in the aggregate amount of $_________________.
In accordance with the Worker Adjustment and Retraining Notification Act, this notice shall be recorded with the county clerk in the county in which the employer holds property and shall constitute a lien against property of the employer identified above.
Dated this ___ day of _______, 20__.
STATE OF NEW MEXICO
ATTORNEY GENERAL
By: ____________________.
Section 8. WAIVERS AND RELEASES.--
A. An agreement to waive the rights of an employee pursuant to the Worker Adjustment and Retraining Notification Act is voidable before, during and within thirty days after the advance notification period unless payment is received by the employee in an amount that meets or exceeds the wages and value of benefits to which the employee would have been entitled throughout the advance notification period. If an employee renders void such an agreement, the employee shall return the lesser amounts paid by the employer within fourteen days of such election.
B. An employee's acceptance of severance payments shall not be used to offset an award of damages when such payments are:
(1) voluntarily and unconditionally paid in an amount less than the value of wages and benefits to which the employee is entitled during the advance notification period; or
(2) paid pursuant to contractual obligations of the employer owed to the employee.
C. An employee's waiver of claims or acceptance of a severance payment does not absolve or mitigate an employer's obligation to provide notification to other persons or entities entitled to notification pursuant to the Worker Adjustment and Retraining Notification Act.
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