HB 920 – AS INTRODUCED
2007 SESSION
06/10
HOUSE BILL 920
AN ACT establishing a worker adjustment and retraining notification requirement.
COMMITTEE: Labor, Industrial and Rehabilitative Services
This bill requires certain employers to provide their employees, the state, and the local government with 60 days notice before plant closings or mass layoffs. This bill is based on the federal Worker Adjustment and Retraining Notification statute.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
07-1068
06/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seven
AN ACT establishing a worker adjustment and retraining notification requirement.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Worker Adjustment and Retraining Notification. Amend RSA by inserting after chapter 275-E the following new chapter:
CHAPTER 275-F
WORKER ADJUSTMENT AND RETRAINING NOTIFICATION
275-F:1 Definitions. In this chapter:
I. “Affected employees” means employees who may reasonably be expected to experience an employment loss as a consequence of a proposed plant closing or mass layoff by their employer.
(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 include employment loss caused by the relocation or consolidation of part or all of the employer’s business if, prior to the closing or layoff:
(1) 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
(2) 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 or of the closing or layoff, whichever is later.
II. “Employer” means any business enterprise that employs:
(a) Fifty or more employees, excluding part-time employees; or
(b) Fifty or more employees who in the aggregate work at least 2,000 hours per week exclusive of hours of overtime.
III. “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 the single site of employment during any 30-day period for:
(1) At least 33 percent of the employees excluding any part-time employees; or
(2) At least 25 employees excluding any part-time employees.
IV. “Part-time employee” means an employee who is employed for an average of fewer than 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.
V. “Plant closing” means the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 25 or more employees excluding any part-time employees.
VI. “Representative” means an exclusive representative of employees for purposes of collective bargaining.
VII. “Unit of local government” means any general purpose political subdivision of a state which has the power to levy taxes and spend funds, as well as general corporate and police powers.
275-F:2 Notice Required Before Plant Closings and Mass Layoffs.
I. An employer shall not order a plant closing or mass layoff until 60 days after the employer serves written notice of such an order to:
(a) Each representative of the affected employees as of the time of the notice or, if there is no such representative at that time, to each affected employee;
(b) The state dislocated worker unit in the department of resources and economic development designated to carry out rapid response activities; and
(c) The chief elected official of the unit of local government within which such closing or layoff is to occur. If there is more than one such unit, the unit of local government which the employer shall notify is the unit of local government to which the employer pays the highest taxes.
II.(a) An employer may order the shutdown of a single site of employment before the conclusion of the 60-day period if, as of the time that notice would have been required, the employer was actively seeking capital or business which, if obtained, would have enabled the employer to avoid or postpone the shutdown and the employer reasonably and in good faith believed that giving the notice required would have precluded the employer from obtaining the needed capital or business.
(b) An employer may order a plant closing or mass layoff before the conclusion of the 60-day period if the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required.
(c) No notice under this chapter shall be required if the plant closing or mass layoff is due to any form of natural disaster, such as a flood or earthquake.
(d) An employer relying on this paragraph shall give as much notice as is practicable and at that time shall give a brief statement of the basis for reducing the notification period.
III. 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:
(a) The extension beyond 6 months is caused by business circumstances, including changes in price or cost, not reasonably foreseeable at the time of the initial layoff; and
(b) Notice is given at the time it becomes reasonably foreseeable that the extension beyond 6 months will be required.
IV. 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:1, II and III 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.
V. In the case of a sale of part or all of an employer’s business, the seller shall be responsible for providing notice for any plant closing or mass layoff in accordance with 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. Notwithstanding any other provision of this chapter, any person who is an 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.
275-F:3 Exemptions. This chapter shall not apply to a plant closing or mass layoff if:
I. The 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, the project, or undertaking; or
II. The closing or layoff constitutes a strike or constitutes a lockout not intended to evade the requirements of this chapter. Nothing in this chapter shall require an employer to serve written notice pursuant to RSA 275-F:2, I when permanently replacing a person who is deemed to be an economic striker under the National Labor Relations Act (29 U.S.C. 151 et seq.), provided that nothing in this chapter shall be deemed to validate or invalidate any judicial or administrative ruling relating to the hiring of permanent replacements for economic strikers under the National Labor Relations Act.
275-F:4 Administration and Enforcement; Civil Actions Against Employers.
I. Any employer who orders a plant closing or mass layoff in violation of RSA 275-F:2 shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for:
(a) Back pay for each day of violation at a rate of compensation not less than the higher of:
(1) The average regular rate received by such employee during the last 3 years of the employee’s employment; or
(2) The final regular rate received by such employee; and
(b) Benefits under an employee benefit plan including the cost of medical expenses incurred during the employment loss which would have been covered under an employee benefit plan if the employment loss had not occurred. Such liability shall be calculated for the period of the violation, up to a maximum of 60 days, but in no event for more than 1/2 the number of days the employee was employed by the employer.
II. The amount for which an employer is liable under paragraph I shall be reduced by:
(a) Any wages paid by the employer to the employee for the period of the violation;
(b) Any voluntary and unconditional payment by the employer to the employee that is not required by any legal obligation; and
(c) Any payment 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. In addition, any liability incurred 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.
III. Any employer who violates the provisions of RSA 275-F:2 with respect to a unit of local government shall be subject to a civil penalty of not more than $500 for each day of such violation, except that such penalty shall not apply if the employer pays to each aggrieved employee the amount for which the employer is liable to that employee within 3 weeks from the date the employer orders the shutdown or layoff.
IV. If an employer which has violated this chapter proves to the satisfaction of the court 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 court may, in its discretion, reduce the amount of the liability or penalty provided for in this section.
V. A person seeking to enforce such liability, including a representative of employees or of a unit of local government aggrieved under paragraph I or II, may sue either for such person, or for other persons similarly situated, or both, in any superior court of any county in which the violation is alleged to have occurred, or in which the employer transacts business.
VI. In any such suit, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs.
VII. For purposes of this section, the term “aggrieved employee” means an employee who has worked for the employer ordering the plant closing or mass layoff and who, as a result of the failure by the employer to comply with RSA 275-F:2, did not receive timely notice either directly or through his or her representative as required.
VIII. The remedies provided for in this section shall be the exclusive remedies for any violation of this chapter. Under this chapter, a court shall not have authority to enjoin a plant closing or mass layoff.
275-F:5 Other Rights of Employees not Affected. The rights and remedies provided to employees by this chapter are in addition to, and not in lieu of, any other contractual or statutory 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 statute.
275-F:6 Notice Encouraged Where Not Required. The state encourages employers who are not required to comply with the notice requirements of RSA 275-F:2 to provide notice to their employees about a proposal to close a plant or permanently reduce the workforce.
275-F:7 Rulemaking. The commissioner of the department of resources and economic development shall adopt rules, pursuant to RSA 541-A, regarding service of the notices required under RSA 275-F:2. 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 fulfillment of the employer’s obligation to give notice to each affected employee.
2 Effective Date. This act shall take effect January 1, 2008.