Are you confused about the lawsuit filed on November 3, 2022 against Twitter claiming that its recent and impending layoffs violate the federal Worker Adjustment and Retraining Notification Act (the “WARN Act”) and state laws? Here’s what you need to know about the WARN Act and the Twitter lawsuit.

The WARN Act requires employers to provide employees with written notice 60 days in advance of covered mass layoffs. WARN and its implementing regulations define “mass layoffs” as those resulting in an employment loss during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33% of the employer’s active workforce.

Further, “employment loss” is not limited to termination. The term includes employment termination, layoffs exceeding 6 months, or a 50% or greater reduction of an employee’s hours each month of any 6-month period. There are also look-back and look-forward provisions in WARN to prevent employers from structuring layoffs in a way that would otherwise avoid triggering WARN’s notice requirements.

Twitter CEO Elon Musk notified employees on November 3 that Twitter would begin laying off employees in early 2023, but that all employees would receive severance pay. However, one of the five named plaintiffs alleged that he was terminated without notice or severance pay. Further, the complaint alleges that in the coming weeks, Twitter is expected to circulate separation agreements to employees containing a release of rights under state law and the WARN Act. The plaintiffs also seek to prevent Twitter from requesting and securing these releases without advising potential class members of the suit or of their rights under such laws. The plaintiffs’ lawyers want to make sure that there is a meaningful class to represent in the lawsuit; that would not be the case if employees signed off on releases.

The plaintiffs seek injunctive relief, forcing Twitter to conform to the federal and state WARN Acts, which both specify a mandatory 60-day notification period ahead of mass layoffs. Further, the plaintiffs seek injunctive relief forcing Twitter to inform employees of the class action before the separation agreements containing releases are circulated. The plaintiffs are also requesting compensatory damages, including expenses and wages owed.

While it cannot be determined at this point if Twitter actually violated the WARN Act, employers need to consider WARN and state “mini-WARN” laws before conducting mass layoffs or plant closings. An employer that violates the federal WARN act is liable to each affected employee for an amount equal to back pay and benefits for the period of violation, up to 60 days.

If you are considering layoffs, hourly reductions, or plant closings, the labor and employment attorneys at Murtha Cullina are ready and able to assist you in complying with these and other laws.

Contact the authors Salvatore Gangemi and Alyssa Ferreone.

Join us on December 9, for our Labor and Employment Group’s annual webinar on updates and developments in labor and employment law. Topics to be discussed include state legislative updates in CT, MA and NY, conduct and behavior standards under the ADA, aging at work, free speech in the workplace, pay transparency changes, paid family medical leave, and recent developments in employee benefits law and immigration. For more information and register.

NYC Pay Transparency Law became effective on November 1, 2022.

What does this mean for employers?

If you have four or more employees (including independent contractors) you are required to post minimum and maximum salary ranges for available positions for the benefit of current and prospective employees.

Failure to comply can result in significant civil penalties and monetary damages to affected employees.

This new law is part of a growing trend across the country in other states to encourage pay equity.

The law was originally supposed to go into effect on May 15, 2022, but after receiving pushback from various groups over ambiguities in the law, lawmakers enacted amendments and postponed its effective date until November 1, 2022.

The New York City Council amended the law to clarify:

  • Both hourly wage and salaried jobs are subject to the statute
  • Only current employees may bring an action against their employer for failing to comply

A statewide bill proposing a similar pay transparency law was passed by the New York State Legislature in June 2022. The bill is currently under consideration by Governor Hochul, and, if enacted, will take effect 270 days after it is signed into law.

The NYC Commission on Human Rights has the authority to enforce violations on behalf of applicants.

Here’s what employers can do to prepare themselves for the enactment of this new law.

  • Be consistent across the board in setting compensation levels for job positions.
  • Conduct an audit of pay practices to ensure that there are no existing discrepancies that point to discrimination.
  • Don’t rely on job titles in setting salaries and wages. Instead, make sure job responsibilities and duties dictate salary or wage ranges. This is an opportunity to review job titles to ensure that they refer to different jobs, and do not t perpetuate disparate pay rates or practices.

For New York State employers outside of New York City, there’s no time like the present to begin complying with the law’s requirements so that they can hit the ground running once it’s signed into law (which it will be).

Read our previous alert to learn more about the law. Reach out to Sal Gangemi for more information about how the NYC Pay Transparency Law may affect your business.

The New York City Council recently enacted an ordinance banning artificial intelligence (“AI”) in employment decisions unless the technology has been subject to an independent bias audit within a year of use.

Many employers have been using AI in employment decisions for years without regulation. This technology can range from algorithms finding ideal candidates to software used to asses a candidate’s performance during screening interviews. While AI tools promote efficiency, reduce costs, and can help employers make informed decisions, technology can run afoul of discrimination laws by reinforcing bias or screening out candidates of protected classes. Continue Reading New York City Council Passes Law Regulating Use of Artificial Intelligence in Employment Decisions

In March 2022, Governor Kathy Hochul signed legislation amending the New York State Human Rights Law to establish a sexual harassment hotline directly to the New York State Division of Human Rights (NYSDHR). The hotline (800-HARASS-3), which is now active, is intended to be staffed by pro bono lawyers experienced in counseling individuals on sexual harassment. Contact with the hotline does not constitute the filing of a harassment complaint, and individuals intending to file a complaint with the NYSDHR would still be required to follow existing procedures for doing so. Continue Reading New York Workplace Sexual Harassment Hotline Now Operational

Earlier this month, the New York State Senate passed a pay transparency bill similar to a New York City law passed last November. We wrote about the New York City law here and here. Senate Bill S9427A would apply to employers with four or more employers, but not to temporary employment firms. Like the New York City law, the bill would require employers to provide a “range of compensation” for positions that can or will be performed in New York State. The bill defines “range of compensation” to mean “the minimum and maximum salary or hourly range of compensation for a job, promotion, or transfer. . . that the employer in good faith believes to be accurate at the time of the positing.” The bill also imposes recordkeeping requirements, and civil penalties for violations. Continue Reading New York State Senate Passes Bill Requiring Disclosure of Compensation Ranges for Jobs to Employees and Applicants

On May 17, 2022, Connecticut Governor Ned Lamont signed into law the so-called “captive audience” bill (Senate Bill 163), which prohibits employers from requiring their employees to (a) attend employer-sponsored meetings that have a primary purpose of communicating the employer’s opinion concerning religious or political matters, or (b) listen to speech or view communications that have a primary purpose of communicating the employer’s opinion regarding religious or political matters.  The law goes into effect on July 1, 2022. Continue Reading Connecticut Governor Signs Law Prohibiting Employer-Employee “Captive Audience” Communications

On January 15, 2022, New York City Council adopted a local law requiring covered employers with four or more employees to include salary ranges for open job positions beginning on May 15, 2022. For more information on the Local Law, see our original blog post here. On April 28, 2022, the City Council adopted an amendment to the Local Law, moving the effective date to November 1, 2022.

Continue Reading New York City Council Amends Wage Transparency Law

On March 22, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) partially reopened the comment period to allow for additional public comment on specific topics covered by its proposed final standard to protect healthcare workers from workplace exposure to COVID-19. Continue Reading OSHA Seeks Comments on Proposed Final Rule Protecting Healthcare Works from Occupational Exposure to COVID-19

On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”).  The Act, which takes effect immediately, amends the Federal Arbitration Act (the “FAA”) by narrowing both its scope and applicability. Specifically, the Act prohibits employers from forcing employees to settle sexual misconduct claims in closed-door arbitration venues. Continue Reading The End of Forced Arbitration in Sexual Misconduct Cases

On January 15, 2022, the New York City Council adopted an amendment to the New York City Human Rights Law (NYCHRL), requiring covered employers to include salary ranges for positions open to prospective or current employees.  Employers with four or more employees (including independent contractors) are covered by the law.  The new Local Law, which takes effect on May 15, 2022, expands upon a 2017 amendment that barred employers from inquiring about a prospective employee’s “salary history.” Continue Reading New York City Enacts Law Requiring Employers to Provide Salary Ranges in Job Advertisements