Proposed: New York State Fair Warning Act

2023 NYS Highlighted WARN Notice Requirements

The WARN Act protects workers, families and communities if an organization has a foreseen or unforeseen plant closure or mass layoff.  The goal for all of our organizations is to never be in a position for mass layoffs however, understanding the difference in Federal vs. New York State specific laws is necessary, to ensure legal compliance.  New York State is one of the few states that has a “Mini-WARN” Act with stricter regulations than federal law.

Federal:
Requiring employers with 100 or more employees (generally not counting those who have worked less than six months in the last 12 months and those who work an average of less than 20 hours a week) to provide at least 60 calendar days advance written notice of a plant closing and mass layoff affecting 50 or more employees at a single site of employment. WARN makes certain exceptions to the requirements when layoffs occur due to unforeseeable business circumstances, faltering companies, and natural disasters. Advance notice gives workers and their families some transition time to adjust to the prospective loss of employment, to seek and obtain other jobs, and if necessary, to enter skill training or retraining that will allow these workers to compete successfully in the job market. Regular federal, state, local, and federally recognized Indian Tribal government entities that provide public services are not covered. (DOL)

State:
The WARN Act applies to private businesses with 50 or more full time workers in New York State. It covers:

• Closings affecting 25 or more workers
• Mass layoffs involving 25 or more full-time workers (if the 25 or more workers make up at least 33% of all the workers at the site)
• Mass layoffs involving 250 or more full-time workers
• Certain other relocations and covered reductions in work hours

This means that covered businesses must provide all employees with notice 90 days prior to a:

• Plant closing
• Mass layoff
• Relocation
• Other covered reduction in work hours

Businesses that do not provide notice may be required to:

• Pay back wages and benefits to workers
• Pay a civil penalty

Early warning gives the DOL and the LWIB the chance to work with the business early on and provide employees with information about:

• Unemployment Insurance (UI)
• Workforce Programs
• Resources designed to get employees back to work quickly

Early warning also benefits the business. It can shorten the time that workers are on UI. It therefore may lower the UI charges associated with the layoff or closing. (NYS DOL)

As of late 2025/early 2026, the New York State (NYS) WARN Act mandates stricter compliance, requiring 90 days’ notice for layoffs/closures. Recent updates include incorporating remote workers into site counts, requiring disclosure of AI usage in selection decisions, and adding notifications to local officials, school districts, and emergency services. 


Key NYS WARN Act Changes & Requirements

• AI/Algorithmic Disclosure (New): The DOL submission form now asks if AI or algorithmic tools were used to determine layoffs, requiring a yes/no answer and explanation.
• Remote Worker Inclusion: Employees working remotely are now considered based at the site to which they report for calculating whether the threshold is met.
• Expanded Notification Recipients: Notices must now be sent to the chief elected official of the local government, school districts, and local emergency service providers (police/fire), in addition to the DOL and union representatives.
• Increased Notice Period: Employers must provide 90 days’ advance notice (compared to 60 days under federal law).
• Thresholds: Applies to private employers with 50+ full-time employees in NY, covering closings affecting 25+ employees, or mass layoffs of 25+ (if 1/3 of staff) or 250+ employees.
• Sale of Business: Updated rules now apply to notice requirements during a sale of a business. 

Federal additional Links & Information:

Federal WARN ACT Plant Closings and Layoffs

Worker Adjustment and Retraining Notification Act Compliance Assistance Materials

WARN EMPLOYER GUIDE

State Additional Links & Information:

NYS DOL WARN Website

NYS Worker Adjustment and Retraining Notification Act PDF

NYC Information

On June 21, 2023, the New York Department of Labor’s amendments to the NY WARN Act.

Employer Coverage
Under the amended regulations, the definition of a covered employer is expanded to count not just employees at a single site of employment in the state, but also employees who work remotely but are “based at the employment site.”

New Notice Content Requirements
On top of NY WARN’s already long list of notice content requirements, the amended regulations add that the notice to the New York Commissioner of Labor must include:

1. business addresses and email addresses for the employer’s and employees’ agents;
2. the personal telephone numbers, personal email addresses (if known), work locations, part-time/full-time status, method of payment (i.e., hourly, salary, or commission basis), and union affiliation for each affected employee;
3. the total number of full-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site; and
4. the total number of part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site.

Notice to affected employees must now also include relevant information known at the time of the notice, such as information on severance packages or financial incentives if the employee remains and works until the effective date of the layoff, available dislocated worker assistance, and, if the planned action is expected to be temporary, the estimated duration.

Revisions to the Sale of Business Provision and NY WARN Exceptions
NY WARN’s sale of business provision was amended to clarify that sellers will not have an obligation to give WARN notice if the transfer of employees in the sale is a good-faith condition of the purchase agreement, and the purchasing employer does not uphold that condition. In that scenario, the purchasing employer would need to provide notice.

Additionally, NY WARN’s exceptions, which permit an employer in some cases to give less than the full 90-days’ notice to affected employees, remain in place with some tweaks:

• The faltering company exception is now applicable only to plant closings (mirroring the federal WARN Act).
• The unforeseeable business circumstances exception was amended to include public health emergencies, such as a pandemic, that result in a sudden and unexpected closure, and a terrorist attack directly affecting operations as new examples of circumstances that would qualify for this exception.

Older Workers Benefit Protection Act (OWBPA)

“An amendment to the Age Discrimination in Employment Act (ADEA), the OWBPA is a federal law that requires employers to offer older workers (those who are at least 40 years old) benefits that are equal to or, in some cases, cost the employer as much as, the benefits it offers to younger workers. The OWBPA also sets minimum standards for an employee waiver of the right to sue for age discrimination, designed to ensure that the waiver is knowing and voluntary.” (Cornell Legal Information Institute)

The purposes of the Older Workers Benefit Protection Act (OWBPA) are to make it illegal for an employer to:

• use an employee’s age as the basis for discrimination in benefits
• target older workers for their staff-cutting programs, and
• require older workers to waive their rights without observing certain safeguards.

Congressional Website
Additional Link

Additional State Mini-WARN Laws:

“California’s WARN Act (Cal WARN) takes an approach to counting employees and layoffs that differs from the federal WARN Act, Hathaway noted. Cal WARN applies to “facilities” that have employed 75 or more people within the past 12 months. If 50 employees—employed for at least six months—are let go within a 30-day period, Cal WARN is triggered. Also, any closing of a covered facility triggers Cal WARN, even if fewer than 50 employees are let go, he explained.

The Iowa, New Hampshire, New York and Wisconsin WARN laws apply to layoffs involving as few as 25 employees, Hathaway said.

“New York requires 90 days’ notice, and New Jersey has a revision to its WARN law that has not yet gone into effect that also requires 90 days’ notice, plus separation pay equal to one week of pay per year of service,” he noted.

The mini-WARN Act in Illinois applies to employers with 75 or more full-time employees when: 1) 25 or more full-time employees are laid off if they constitute one-third or more of the full-time employees at the site or 2) 250 or more full-time employees are laid off, Hollis said.

Wisconsin’s mini-WARN Act applies to employers with at least 50 employees, he added.

“States continue to pass WARN-like requirements,” Hathaway said. “Be sure to know which states have done so.”

A city also can have a mini-WARN law. “As an example, Philadelphia has such a law, which can be surprising to employers.” (SHRM)

Key State-Specific WARN Act Provisions (as of 2026)

• California (Cal-WARN): Covers employers with 75+ employees. Requires 60 days’ notice for layoffs, relocations, or terminations of 50+ employees within 30 days.
• New York (NY-WARN): Covers employers with 50+ employees. Requires 90 days’ notice for plant closings, and lower thresholds for mass layoffs (33% of workforce or at least 25 employees).
• New Jersey (NJ-WARN): Requires 90 days’ notice for employers with 100+ employees when laying off 50+ workers, and mandates severance pay for certain layoffs.
• Illinois: Applies to employers with 75+ full-time employees, requiring 60 days’ notice for layoffs of 25+ employees (if they constitute 33% of the workforce) or 250+ employees.
• Hawaii & Wisconsin: Both apply to employers with 50+ employees.
• Other States: Additional states with specific mini-WARN laws include Delaware, Iowa, Maine, Maryland, New Hampshire, Ohio, Tennessee, and Vermont. 

Severance Legal Requirements

Federal Law Review and Revocation Periods

Under the federal Age Discrimination in Employment Act (ADEA) and the Older Workers Benefit Protection Act (OWBPA), review periods depend on the employee’s age and the nature of the termination:

• Individual Termination (Age 40+): Minimum 21 days to review the agreement.
• Group Layoff / Reduction in Force (Age 40+): Minimum 45 days to review if two or more employees are laid off.
• Federal Revocation Period: Mandatory 7 days to revoke the signature after signing an age discrimination waiver.

On March 4, 2025, the New York state Senate passed S.372, the “No Severance Ultimatums Act” a first of its kind legislation which, if enacted, will require New York employers to:

Provide a minimum 21 business days for employees to review severance agreements (which is waivable by the employee), and a nonwaivable seven-day revocation period after signing, and notify employees of their right to consult with an attorney before signing the agreement.

• California: SB 331 (passed in 2022) requires employers to provide all employees at least five business days to review a severance agreement and notify employees of their right to consult with an attorney. California however does not require employers to require a revocation period after signing.
• Minnesota: Under the Minnesota Human Rights Act (MHRA), prospective claims of the MHRA cannot be released in a severance agreement. Additionally, if a severance agreement includes a release of claims existing at the time of execution related to workplace discrimination, harassment or retaliation, employees have the right to rescind the release of MHRA claims within 15 days (written agreements) or 45 days (for electronic agreements) after signing.
• New York: Existing New York law already requires a 21-day (waivable) review period and a mandatory seven-day revocation period for settlement agreements resolving discrimination, harassment or retaliation claims, when the employer includes a non-disclosure provision (at the employee’s choice) regarding the facts of the claim. Employers must provide this in a separate agreement for review and signature before signing the full settlement agreement.

No Severance Ultimatum Act- NYS

The Act adds a new Section 215-d to the New York Labor Law (“NYLL”) and prohibits so-called “coercive severance ultimatums.” Specifically, the Act requires that employers provide separating employees additional time and information before such employees release waivable claims. The Act would apply to all New York employees. Notably, the Act expressly includes governmental agencies in its definition of “employer.”

Under the Act, any employer offering a “severance agreement,” defined as an agreement offered upon separation of employment that requires the employee to release waivable claims against the employer, must notify the employee that:

• The employee has a right to consult an attorney about the agreement;
• The employee has at least twenty-one (21) calendar days to consider the agreement;
• The employee may revoke the agreement within seven (7) calendar days of signing;
• The agreement does not become effective and enforceable until after the revocation period expires; and
• The employee may make a knowing and voluntary choice to sign the agreement prior to the end of the consideration period, provided such decision is not induced by the employer through fraud, misrepresentation, a threat to withdraw or alter the consideration period, or by providing different terms if the employee signs early.

https://www.jdsupra.com/legalnews/new-york-s-no-severance-ultimatums-act-1086745/

Severance Pay Considerations

The firm’s 2014 Guide to Severance and Workforce Transition reflects the results of a survey of over 250 HR professionals across a wide range of company sizes and industries in the U.S. For those organizations not offering severance to all employees in cases of involuntary separation, the following positions were eligible for severance payments:

• Officers (C-suite)—76 percent of respondents.

• All senior executives—84 percent.

• Managers—84 percent.

• Professionals—73 percent.

• Administrative/clerical employees—56 percent.

• No policy—12 percent.

• Don’t know—5 percent.

“Because reductions in force or organizational restructuring events often affect many more employees below the professional level than above it, not offering severance may have an effect on how a large number of employees choose to respond with legal action or speak about or represent the company in the media, within their social networks, and in online reviews, where their opinions may create a ripple effect,” the report points out.

Calculating Severance

Of the 48 percent of organizations that offered severance for all eligible employees, the top three factors in calculating severance payouts were:

• Years of service.

• Job level or title.

• Base salary.

When asked for the average amount of equivalent salary offered to employees of those organizations, the top three responses were:

• 3 months.

• 2 months.

• 1 month.

“Factors such as employee level or tenure have often factored into severance calculations in the past; however, as the business landscape changes and the conversation in human resources includes more perspectives on fairness in compensation and reward, it will be interesting to see if severance [trends toward] standard calculations” for all employees, the report states.

Continuing Benefits

Employers with 20 or more employees are usually required to offer departing employees COBRA health insurance coverage and to notify their employees of the availability of such coverage. Among surveyed companies, 70 percent have a standard policy for COBRA health plan continuation for all employees in the event of a reduction in force. These companies indicated that they:

• Provide COBRA benefits continuance as required—35 percent of respondents.

• Pay COBRA/insurance premium payments directly to an insurance company—29 percent.

• Give employees a lump sum to fully cover COBRA/insurance premiums—9 percent.

• Give employees a lump sum to partially cover COBRA/insurance premiums—6 percent.

• Partially reimburse employees’ COBRA/insurance premium payments—6 percent.

• Fully reimburse employees’ COBRA/insurance premium payments—4 percent.



When paying severance on an ad hoc basis, employers should be careful to clearly establish that they retain discretion over whether to grant severance pay and that it is not automatic or a vested job right. Some of the more common administrative issues that should be addressed include the following:

• Will severance benefits cease if a former employee obtains alternative employment during the severance pay period?
• How will any benefit payments be handled?
• Will former employees continue to be considered “employees” of the organization during severance pay periods with all the same rights and privileges as active employees?
• Will individuals still considered to be employees be eligible for routine salary increases or adjustment during the severance period?
• What approval process will be required for authorizing severance payments?
• Will there be an appeal process?
• How will severance payments be calculated, and what will be the basis used for calculating benefits?
• Will benefits be paid in the form of a lump sum payment, or over time?
• Will changes in policy have any impact on past and current recipients of severance pay benefits?
• What funding mechanisms are to be used to fund severance benefits?
• Can severance benefits be transferred, assigned or pledged to a third party?
• Will employees be required to sign a waiver or release of claims prior to receiving severance benefits?
• What impact will the employee’s receipt of severance pay have on unemployment insurance benefits for the employee and on the future premiums of the employer? (SHRM)

What to include

Having a clearly written and communicated policy regarding termination and severance pay benefits is highly advisable. However, unless governed by a collective bargaining agreement or state law, what an employer chooses to include in a severance pay policy is at its discretion.
The amount and type of compensation in any given severance agreement varies according to specific circumstances, but the amount of severance pay is typically based on a number of factors, including:

• Length of the employee’s tenure with the employer.
• Circumstances under which the employment relationship ended (e.g., employer downsizing, employee conduct or layoff).
• The employer’s financial solvency or particular circumstances (e.g., filing for bankruptcy, experiencing economic growth).

A well-structured policy should reflect the employer’s organizational culture and philosophy. In drafting the policy, employers should consider incorporating provisions that:

• Cover a range of common situations, such as downsizing resulting from changes to internal organizational structures or business reorganizations.
• Specify that severance pay benefits will be paid only to employees who are actually laid off as a result of transfers in business ownership due to a merger or acquisition.
• Specify whether periodic severance payments cease when former employees obtain alternative employment.
• Require employees to sign a waiver or release absolving the employer from employment-related liability prior to remittance of any severance pay.
• Stipulate that any waiver or release should comply with the detailed requirements of the OWBPA, which applies when a discharged employee is age 40 or older and is waiving or releasing ADEA claims.
• Clearly spell out the purpose of severance pay benefits. Generally, the purpose defines the group or groups of employees who are eligible under the plan as well as the benefits and constraints of the plan.
• Specifically state that the organization reserves the right to alter or terminate the policy at its discretion. (SHRM)

https://www.shrm.org/topics-tools/tools/toolkits/designing-administering-severance-pay-plansDraft Policy (SHRM) Consider all local and state laws prior to implementation.

Severance Pay Policy
Purpose
The purpose of this policy is to outline the severance pay benefit of [Company Name].

Eligibility
This policy applies to all exempt and nonexempt, full-time and part-time employees. Part-time employees will receive severance pay on a pro-rated basis in accordance with their scheduled hours.

Triggering Events
In the event of an involuntary termination due to a reduction in force/downsizing, change in company direction, job elimination or termination for performance, [Company Name] provides a severance benefit for the affected employees. This does not apply to terminations for cause, refusal to be reassigned or refusal to be relocated.

Payment Amount
The rate of severance is based on length of service with [Company Name] (or as adjusted through acquisition).

Length of Service                  Number of Weeks
Less than one year                              2
One year – less than two                     3
Two years – less than three                 4
Three years – less than four                5
Four years – less than five                   6
Five years – less than six                     7
Six years or more                                8

The maximum allowed severance is eight weeks. Severance is calculated on base pay only. Employees may choose to receive severance pay as a salary continuation benefit (continue payments on scheduled paydays) or in a lump sum. Federal, state and local tax withholding will apply.

Vacation
Accrued but unused vacation will be paid out to the employee. Vacation will stop accruing as of the effective date of termination.

Commissions
Any commissions earned as of the date of the termination will be paid out.

Insurance Benefits
Health and dental insurance coverage, if applicable, end on the last day of the month in which the employee receives the severance benefit. Upon termination of coverage, COBRA notification will be forwarded.

Reduction in Force Policy – Selection and Severance Pay

A reduction in force (RIF) occurs when changing priorities, budgetary constraints or other business conditions require [Company Name] to eliminate positions.

Selection for RIF

A RIF decision requires an evaluation of the need for particular positions and the relative value of work performed by specific employees so that [Company Name] can continue to provide the highest level of service possible with a reduced work force. Determining the retention or separation of an employee includes an evaluation of the relative skills, knowledge and productivity of the employee in comparison to necessary services. Length of service and other factors are also considered but receive less weight in the determination. [Company Name] determines priority for RIF within the following guidelines:

• Temporary employees performing the same work must be terminated before any regular employee, provided that a regular employee can perform the temporary employee’s tasks.
• Reduction in force of regular employees is based on the following factors:
  • Which positions are most critical to the department in the delivery of goods or services.
  • Relative skills, knowledge and productivity of employees.
  • Length of service of employees.
  • Consideration of equal employment factors to avoid adverse impact on [Company Name]’s affirmative action goals.

Severance Pay
Severance pay is available for eligible employees in accordance with [Company Name]’s RIF determination process.

Severance pay calculation
The amount of an eligible employee’s severance payment is based on length of service and salary at separation. Payment is made in the same number of months as the number of months of pay. Payment is discontinued once re-employment is obtained.

Years of Service	Payment
Less than 1 year	2 weeks’ base salary
1 but less than 5 years	1 month base salary
5 but less than 10 years	2 months’ base salary
10 but less than 20 years	3 months’ base salary
20 or more years	4 months’ base salary

[Optional section, where allowable under state law:]

Age Adjustment
An employee qualifies for an age adjustment factor at 40 years of age. To compute the amount of the adjustment, 2.5 percent of the annual base salary at separation is added for each full year of age over 39 years of age. The total age adjustment factor cannot exceed the total service payment.

Example: Age 47, salary – $48,000/year, 9 years’ service

Factor	Computation	Amount of Severance Pay
Service	$4,000/month for 2 months	$8,000
Age adjustment	$48,000 x .025 x (47-39) = $9,600 Age adjustment factor cannot exceed the service factor, so the age factor is limited to $8,000.	$8,000
	Total	$16,000 distributed over 2 months

Deductions from severance pay
The following deductions must be withheld from severance payments.

Deduction	Amount
Federal withholding	Based on an employee’s current withholding status on W-4
Garnishments, support orders, levies	All based on directive provided
Negative leave balances, where allowable	Based on leave balances

The following deductions will not be withheld from severance payments:

• State income withholding tax (if permitted by the employee’s state).
• Medical insurance, including health, dental and vision.
• 401(k) and deferred compensation.
• 401(k) loan payments.
• Life insurance.

Direct deposit
Severance payments, as well as any leave payout due, will continue to be directly deposited into the bank account currently set up. To change to a different account, contact the payroll office.

Other RIF Benefits
Unemployment insurance
Employees separated due to RIF are eligible to collect unemployment insurance provided they otherwise meet the state eligibility requirements. Contact the local unemployment office to file a claim for unemployment compensation.

Vacation balance
Vacation leave is paid for a maximum of [insert amount] hours.
 
What is Outplacement Service?



Outplacement services offer a multitude of benefits for both the employee and the employer.

For the Employee:

• Career Counseling and Guidance: Outplacement provides access to experienced career counselors who can help employees assess their skills, interests, and career goals. Counselors offer personalized guidance on career paths, job search strategies, and professional development.
• Resume and Cover Letter Assistance: Crafting a compelling resume and cover letter is crucial for a successful job search. Outplacement services offer expert assistance in developing these documents, highlighting the employees’ strengths and accomplishments in a way that resonates with potential employers.
• Interview Skills Training: Many people find interviewing stressful. Outplacement programs include interview skills training, equipping employees with the techniques and confidence to excel in job interviews. This may include mock interviews, feedback on communication style, and strategies for answering common interview questions.
• Job Search Resources and Networking: Outplacement services provide access to a wealth of job search resources, including job boards, company directories, and networking opportunities. Counselors can help employees identify potential employers and connect with industry contacts.
• Emotional Support: Losing a job can be emotionally challenging. Outplacement services offer emotional support and guidance to help employees cope with the stress and uncertainty of job loss. Counselors can provide a safe space to process emotions and develop coping strategies.
• Negotiation Skills: Outplacement services can assist employees in negotiating salary and benefits with potential employers.

For the Employer:

• Improved Employee Morale: Offering outplacement services demonstrates that the employer cares about the well-being of its employees, even after they leave the company. This can help maintain morale among remaining employees and reduce the risk of negative publicity.
• Reduced Legal Risk: Providing outplacement services can help mitigate the risk of legal action from departing employees. By offering support and resources, employers can demonstrate that they are treating employees fairly and respectfully.
• Enhanced Reputation: Companies that offer outplacement services are often viewed as more socially responsible and ethical. This can enhance the company’s reputation and attract top talent in the future.
• Smoother Transition: Outplacement services can help ensure a smoother transition for both the departing employees and the remaining team. By providing support and resources, employers can minimize disruption and maintain productivity.
• Positive Brand Image: Treating departing employees with respect and dignity can positively impact the company’s brand image. This can be particularly important in today’s social media-driven world, where negative experiences can quickly go viral.

Key Components of Outplacement Services
Outplacement services typically include a range of components designed to support the employee’s job search. These components may include:

• Assessment: An initial assessment to identify the employee’s skills, interests, and career goals.
• Career Counseling: One-on-one counseling sessions with an experienced career coach.
• Resume and Cover Letter Development: Assistance in creating professional and effective resumes and cover letters.
• Interview Skills Training: Workshops and practice sessions to improve interview performance.
• Job Search Strategy Development: Guidance on developing a targeted job search strategy.
• Networking Opportunities: Access to networking events and industry contacts.
• Online Resources: Access to online job boards, company directories, and other resources.
• Administrative Support: Assistance with administrative tasks such as scheduling interviews and preparing documents.
• Negotiation Support: Assistance with negotiating salary and benefits.

Types of Outplacement Services
Outplacement services are not one-size-fits-all. They can be tailored to meet the specific needs of the employee and the employer. Common types of outplacement services include:

• Individual Outplacement: This is the most common type of outplacement service, providing personalized support to individual employees.
• Group Outplacement: This type of service is offered to groups of employees who are being laid off at the same time. It typically includes workshops and group counseling sessions.
• Executive Outplacement: This type of service is designed for senior-level executives and typically includes more intensive coaching and support.
• Virtual Outplacement: This type of service is delivered online, providing employees with access to resources and support from anywhere in the world.

Talentscape’s Outplacement Services
Talentscape’s outplacement services are designed to empower departing employees and equip them with the tools and support they need to successfully navigate their career transitions. Here’s how:

• Personalized Career Coaching: Every individual’s situation is unique. Talentscape provides one-on-one coaching sessions with experienced career consultants who take the time to understand each participant’s skills, experience, goals, and challenges. This personalized approach ensures that the advice and guidance provided are relevant and effective. Coaches help participants identify their strengths, explore career options, and develop a tailored job search strategy.
• Resume and Cover Letter Optimization: A strong resume and compelling cover letter are essential for making a positive first impression on potential employers. Talentscape’s experts work with participants to craft professional, ATS-friendly resumes and targeted cover letters that highlight their accomplishments and showcase their value.
• Interview Skills Training: Mastering the art of interviewing is crucial for landing a job. Talentscape offers comprehensive interview skills training, including mock interviews, feedback on communication style, and guidance on how to answer common interview questions effectively. Participants learn how to confidently present themselves and articulate their qualifications.
• Networking Opportunities: Networking is a powerful tool for job seekers. Talentscape helps participants expand their professional networks by providing access to industry contacts, alumni networks, and online communities. Coaches also provide guidance on how to effectively network and build relationships.
• Job Search Resources and Technology: Talentscape provides access to a wealth of job search resources, including online job boards, company directories, and industry research tools. Participants also benefit from access to cutting-edge technology platforms that streamline the job search process and help them track their progress.
• Emotional Support and Guidance: Job loss can be a stressful and emotional experience. Talentscape provides a supportive and understanding environment where participants can process their emotions, build their confidence, and stay motivated throughout their job search. Coaches offer encouragement, guidance, and practical advice to help participants overcome challenges and stay focused on their goals.

Benefits for Employers
Offering outplacement services is not just a compassionate gesture; it’s a strategic investment that can benefit employers in numerous ways:

• Enhanced Employer Brand: Providing outplacement services demonstrates a commitment to employee well-being and reinforces a positive employer brand. This can improve employee morale, attract top talent, and enhance the company’s reputation in the marketplace.
• Reduced Legal Risks: Outplacement services can help mitigate the risk of legal claims related to terminations. By providing departing employees with support and resources, companies can reduce the likelihood of wrongful termination lawsuits and other legal challenges.
• Improved Employee Morale and Productivity: When employees see that their company cares about their future, even after they leave, it can boost morale and productivity among remaining employees. This can lead to a more engaged and motivated workforce.
• Smoother Transitions: Outplacement services can help ensure a smoother transition for both departing employees and the company. By providing support and guidance, companies can minimize disruption and maintain productivity during periods of change.
• Cost Savings: While outplacement services involve an initial investment, they can ultimately lead to cost savings by reducing legal risks, improving employee morale, and minimizing disruption.
• Positive Public Relations: Offering outplacement services can generate positive public relations and enhance the company’s image as a responsible and caring employer.

Why Talentscape Stands Out
Talentscape distinguishes itself from other outplacement providers through its:

• Customized Approach: We understand that every organization and every employee has unique needs. Our programs are tailored to meet those specific requirements.
• Experienced and Dedicated Coaches: Our team of career coaches comprises seasoned professionals with extensive experience in various industries. They are passionate about helping individuals achieve their career goals.
• Cutting-Edge Technology: We leverage the latest technology to provide participants with access to a comprehensive suite of job search tools and resources.
• Proven Track Record: We have a proven track record of helping individuals successfully transition to new roles.
• Commitment to Client Satisfaction: We are committed to providing exceptional service and exceeding our clients’ expectations.

New York has the most restrictive law, prohibiting discipline for legally protected absences (like FMLA, disability, religious needs) under “no-fault” policies, making it the closest to having a “no-fault ban” for those crucial leaves. Other states, like California, also have strong laws (CFRA, PDL) protecting specific leaves, meaning employers must always account for these protected reasons, even in general point systems. 

Key State Examples

• New York (NY): Since February 2023, NY Labor Law § 215 prohibits employers from disciplining or retaliating against employees for lawful absences protected by federal, state, or local law, effectively restricting traditional no-fault systems for such leaves.
• California (CA): State laws like the California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL) require employers to allow protected leave, meaning any attendance policy must exclude these absences from points or penalties. 

What These Policies Mean

• No-Fault Policies: These systems track absences (tardies, no-shows) and assign points regardless of the reason, leading to discipline if a threshold is met.
• Legally Protected Absences: Even in states without explicit bans, federal and state laws (like FMLA, ADA, state sick leave laws) mandate certain leaves (e.g., serious health conditions, disability accommodations, family needs) that cannot be penalized under a standard no-fault system. 

What are No-Fault Attendance Policies?

No-fault attendance policies, also known as point-based or occurrence-based attendance policies, are disciplinary systems that address employee absenteeism and tardiness regardless of the reason for the absence. Unlike traditional attendance policies that distinguish between excused and unexcused absences, no-fault policies treat all absences the same, with certain exceptions.

The core principle is that consistent attendance is essential for business operations, and excessive absenteeism, regardless of the cause, disrupts productivity and imposes costs on the employer. These policies aim to create a clear, objective, and consistently applied system for managing attendance.

Key Features of No-Fault Attendance Policies

Several key features characterize no-fault attendance policies:

• Point System: Employees accrue points for each absence or instance of tardiness. The number of points assigned may vary depending on the duration of the absence or the lateness.
• Progressive Discipline: As an employee accumulates points, they progress through a series of disciplinary actions, such as verbal warnings, written warnings, suspensions, and ultimately, termination.
• Point Decay or Restoration: Some policies include a mechanism for points to decay or be restored over time if the employee maintains good attendance. This incentivizes improved attendance behavior.
• Specific Point Thresholds: The policy clearly defines the point thresholds for each disciplinary action, ensuring transparency and consistency.
• Limited Exceptions: While the policy is generally “no-fault,” most policies include exceptions for absences protected by law, such as those covered by the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), or workers’ compensation laws.
• Clear Communication: The policy is clearly communicated to all employees, outlining the rules, point system, disciplinary actions, and exceptions.

Legal Considerations

While no-fault attendance policies offer administrative simplicity, employers must be mindful of several legal considerations:

• FMLA: The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons. Employers cannot penalize employees for taking FMLA-protected leave under a no-fault attendance policy.
• ADA: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with disabilities. This may include modifying attendance policies to accommodate disability-related absences. Employers must engage in an interactive process with employees to determine if a reasonable accommodation is possible.
• Workers’ Compensation: Employees who are absent due to work-related injuries or illnesses are typically protected under workers’ compensation laws. Employers cannot penalize employees for absences related to compensable injuries or illnesses.
• Discrimination: Employers must ensure that no-fault attendance policies are applied consistently and do not disproportionately impact protected groups, such as employees based on race, gender, religion, or age.
• State and Local Laws: Some states and localities have laws that provide additional protections for employees regarding sick leave or other types of leave. Employers must comply with these laws when implementing and administering no-fault attendance policies.
• Contractual Obligations: Collective bargaining agreements or employment contracts may contain provisions related to attendance policies. Employers must adhere to these contractual obligations.

Advantages of No-Fault Attendance Policies

• Simplicity and Objectivity: No-fault policies are relatively simple to administer and provide a clear, objective standard for evaluating attendance.
• Consistency: The consistent application of the policy can reduce claims of favoritism or discrimination.
• Reduced Administrative Burden: Eliminating the need to evaluate the reasons for absences can save time and resources for HR and management.
• Improved Attendance: The policy can incentivize employees to improve their attendance by creating a clear consequence for absences.
• Focus on Performance: By addressing absenteeism, the policy can help improve overall employee performance and productivity.

Disadvantages of No-Fault Attendance Policies

• Potential for Inequity: The policy may penalize employees for legitimate absences, such as those due to illness or family emergencies, which can lead to resentment and morale issues.
• Risk of Legal Challenges: Failure to properly account for legally protected absences can result in legal challenges under the FMLA, ADA, or other laws.
• Negative Impact on Employee Morale: Employees may feel that the policy is unfair or insensitive to their personal circumstances, which can negatively impact morale and engagement.
• Presenteeism: Employees may come to work sick to avoid accruing points, which can spread illness and reduce productivity.
• Difficulty in Addressing Underlying Issues: The policy may not address the underlying reasons for absenteeism, such as job dissatisfaction, stress, or health problems.
• Potential for Abuse: Employees may strategically use their allowed absences, leading to predictable disruptions in workflow.

Best Practices for Implementing No-Fault Attendance Policies
To mitigate the potential disadvantages and ensure legal compliance, employers should consider the following best practices:

• Clearly Define the Policy: The policy should be written in clear, concise language and easily accessible to all employees.
• Provide Adequate Training: Managers and supervisors should be trained on how to administer the policy consistently and fairly.
• Make Exceptions for Legally Protected Absences: The policy should clearly state that absences covered by the FMLA, ADA, workers’ compensation, and other applicable laws will not be counted against employees.
• Consider a “Good Faith” Exception: Include a provision that allows for exceptions in extraordinary circumstances, such as natural disasters or family emergencies.
• Offer Employee Assistance Programs (EAPs): Provide resources to help employees address underlying issues that may be contributing to absenteeism, such as stress, mental health problems, or substance abuse.
• Regularly Review and Update the Policy: The policy should be reviewed and updated periodically to ensure compliance with changing laws and regulations and to address any unintended consequences.
• Communicate Openly with Employees: Be transparent about the purpose of the policy and address any concerns or questions that employees may have.
• Track Attendance Data: Monitor attendance data to identify trends and patterns and to evaluate the effectiveness of the policy.
• Focus on Employee Well-being: Promote a culture of employee well-being and provide resources to help employees stay healthy and productive.

Many of our organizations have dealt with absenteeism, both chronic and occasional.  These absences do have an impact on all of our organizations from productivity to organizational culture and employee conflict/retaliation, turnover, etc.  “Each year, “US workers are absent from work for more than ½ billion work days…according to a 2016 report published by the CDC, productivity losses from missed work cost employers $225.8 billion, or $1,685 per employee, each year…absenteeism causes financial issues, loss of productivity and a decrease in workplace morale.”[i]

The yearly cost of employee absenteeism is 225.8 billion dollars.

There’s no doubt about it: $225.8 billion is a lot of money…that comes out to $1,685 per employee, per year. Why is absenteeism so costly? Absenteeism not only reduces productivity, but can also lead to increased spending on hiring and onboarding new employees, paying overtime for employees covering open shifts, and unplanned downtime.
https://www.teamsense.com/blog/absenteeism-workplace-statistics

Chronic Absenteeism Definitions to Remember:

Employee absences fall within two broad categories:

1. “Innocent”: Absences related to legitimate medical and/or personal issues and are out of the employee’s control
2. “Culpable”: Absences that occur without genuine cause and are within the employee’s control

What about Statutory Interplay (laws and regulations that impact absenteeism)?

*These regulations and statutory interplay are specific to New York State, review your local and state laws and regulations, to ensure compliance, while ensuring a thorough understanding of the regulations prior to writing and enforcing attendance policies.

Thoughts on Chronic Absenteeism:

1. Design, implement and communicate a legally compliant and effective attendance policy.
2. Ensure your managers, supervisors and the rest of the organization is consistently enforcing the attendance policy.  Questions to consider:
   1. Are call-in procedures being followed?  Are we allowing text messages, Facebook messages, emails, etc.?
   2. Are we tracking call-ins?
   3. Are documentation procedures being followed?
   4. What about the aforementioned protected leave interplay?  Have we checked on this?
3. Track attendance and review metrics on a regular basis.  We reviewed attendance metrics monthly as part of the Key Performance Indicators (KPI’s) at past organizations, during monthly operation review meetings.
4. Conduct necessary follow-up when vague absence explanations that are being offered.  Ask for new FMLA paperwork or ADA paperwork.  Follow-up, but follow-up consistently.  Accountability from the organization and employees is necessary.
5. Recognize and reward for good attendance records.  Ensure this is spelled out in the policy and implemented consistently throughout the organization.
6. What about pattern absenteeism?
7. Training and communication on the policy and handbook language?
8. Rolling 12-month calendar?

These are just a few thoughts, definitions and recommendations on chronic absenteeism and attendance policies for all organizations.  I have written many of these policies for organizations and implemented attendance tracking metrics.  I’m happy to work with any organization in reviewing, revising, drafting, implementing and communicating attendance policies.  Consistency is the key to a successful attendance policy.  Ensure you review laws and regulations at the local, state and federal level prior to finalizing the attendance policy.

Example Attendance Policy (Review Local & State Considerations)

Objective
The purpose of this policy is to set forth for the Organization policy and procedures for handling employee absences and tardiness to promote the efficient operation of the company and minimize unscheduled absences. 

Policy
Punctual and regular attendance is an essential responsibility of each employee at the Organization.  Employees are expected to report to work as scheduled, on time and prepared to start working. Employees are also expected to remain at work for their entire work schedule. Late arrival, early departure or other absences from scheduled hours are disruptive and must be avoided.

This policy does not apply to absences covered by the Family and Medical Leave Act (FMLA) or leave provided as a reasonable accommodation under the Americans with Disabilities Act (ADA), New York State Paid Family Leave (PFL), New York State Paid Sick Leave (PSL), Workers Compensation, Paid COVID-19 Sick Leave (as applicable), Pregnancy Leave (PDA & PWFA), Religious Holidays, Jury Duty, Time Off to Vote, Bereavement Leave and any other protected leave as defined at the local, state, and federal level. These exceptions are described in separate policies.

Absence
“Absence” is defined as the failure of an employee to report for work when he or she is scheduled to work. The two types of absences are defined below:

Excused absence occurs when all the following conditions are met:

• The employee provides to his or her supervisor sufficient notice advance of the absence.
• The absence request is approved by the Human Resources Department or Supervisor.
• Unexcused absence occurs when any of the above conditions are not met. If it is necessary for an employee to be absent or late for work because of an illness or an emergency, the employee must notify his or her supervisor no later than the employee’s scheduled starting time on that same day. If the employee is unable to call, he or she must have someone make the call.
  An unexcused absence counts as one occurrence for the purposes of discipline under this policy.

Employees with three or more consecutive days of excused absences because of illness or injury must give the Organization proof of physician’s care and a fitness for duty release prior to returning to work.

Employees must take earned PTO and/or PSL for every absence unless otherwise allowed by company policy (e.g., leave of absence, FMLA, bereavement, jury duty) if paid leave is available.

Call-In Procedure: Employees are expected to call in, text or email prior to any scheduled shift as soon as possible. Sick, Personal, Leave, PTO, etc. must be approved prior to using any leave. Approval must be submitted to the President. If you plan to take vacation time 5-10 days, please schedule 2-weeks in advance. Call-in includes intermittent FMLA, PFL leave, sick leave, etc. reserves the right to deny any leave if standards are not followed, employees not following procedures will be disciplined up to and including dismissal.

Tardiness and Early Departures
Employees are expected to report to work and return from scheduled breaks on time. If employees cannot report to work as scheduled, they must notify their supervisor no later than their regular starting time. This notification does not excuse the tardiness but simply notifies the supervisor that a schedule change may be necessary.
Employees who must leave work before the end of their scheduled shift must notify a supervisor immediately.
Tardiness and early departures are each one-half an occurrence for the purpose of discipline under this policy.

Chronic Absence or Tardiness
Employees receiving corrective action under this policy are expected to improve their attendance and punctuality. Failure to improve and sustain improvement may result in the employee’s receiving additional correction, up to and including termination.

Pattern Absenteeism
Is defined as late arrivals or missing scheduled days during a workweek, (showing up late on Monday morning or calling in sick on Monday). 

Disciplinary Action
Excessive absenteeism is defined as two or more occurrences of unexcused absence in a 30-day period and will result in disciplinary action. Eight occurrences of unexcused absence in a 12-month period are considered grounds for dismissal.

Job Abandonment
Any employee who fails to report to work for a period of three days or more without notifying his or her supervisor will be considered to have (AWOL) abandoned the job and voluntarily resigned from the employment relationship. 

Attendance Point System for Nonexempt Employees

Attendance and Punctuality
An unauthorized absence occurs when the employee’s supervisor/department has not been properly notified that an employee will be late or absent. Points will be assessed for unauthorized absences, tardiness or late arrivals as described below.
Absent – missing one or more consecutive scheduled workdays for a single reason or
                  arriving more than two hours after the scheduled starting time.
Tardy – arriving up to 15 minutes after the scheduled starting time.
Late – arriving between 15 minutes and two hours after the scheduled starting time.

Absence	Points	Explanation
1-14 minutes	1	Tardy
15 minutes-2 hours	3	Late
More than 2 hours	5	Unauthorized absence

Disciplinary Action
Employees will be subject to disciplinary action when the total points accumulated from unauthorized absences and tardiness reach the following levels during any rolling 12-month period.

Points	Corrective Action
10	Verbal warning
15	Written warning
20	Termination

Perfect Attendance Objective
The Organization values employees with perfect attendance and recognizes nonexempt employees semiannually for perfect attendance on January 1 and July 1.

Eligibility
To receive an attendance award, the employee must have been a full-time employee during the previous six-month period and have used no sick leave, taken no time off without pay, had no unscheduled late arrivals or early departures that were not made up within the same workweek, and had no unscheduled PTO (without advanced notice). Absences covered by the Family and Medical Leave Act (FMLA) or leave provided as a reasonable accommodation under the Americans with Disabilities Act (ADA), New York State Paid Family Leave (PFL), New York State Paid Sick Leave (PSL), Workers Compensation, Paid COVID-19 Sick Leave (as applicable), Pregnancy Leave (PDA & PWFA) are not counted.

Perfect Attendance Award
The perfect-attendance award is $100 cash. This cash award is considered taxable income to the employee but will be “grossed up” to cover taxes so that the actual amount the employee realizes is $100. It will be included in the employee’s paycheck the first regularly scheduled payday following January 1 and July 1.

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[i] Bond Slides