Updated June 8, 2021

Seventeen months ago, New Jersey Governor Phil Murphy signed into law Senate Bill 3170, which radically expands employers’ advance notice and severance pay obligations under the Millville Dallas Airmotive Plant Job Loss Notification Act – otherwise known as NJ WARN.  Originally scheduled to go into effect on July 17, 2020, the NJ WARN amendments have been repeatedly postponed due to the COVID-19 pandemic.  Because of actions taken by Gov. Murphy and the NJ Legislature on June 4, 2021, however, employers should prepare for the 2020 NJ WARN amendments to become effective in the near future.

What is the new effective date?  That remains uncertain, but employers should be aware that plaintiffs may assert an effective date of as early as September 2, 2021.  The 2020 amendments will be effective 90 days after the termination of Gov. Murphy’s 2020 Executive Order 103.  Recent events have left it unclear when EO 103 will be considered to have been terminated.

What’s happened, and why the uncertainty?  The background is that on April 14, 2020, Gov. Murphy signed Senate Bill 2353, which delayed the effective date of the NJ WARN amendments to 90 days after the termination of Gov. Murphy’s Executive Order 103 of March 9, 2020.  EO 103 had declared both a “public health emergency” (pursuant to N.J.S.A. 26:13-1 et seq.), and a “state of emergency” (pursuant to N.J.S.A. App.A.:9-33 et seq.).  On June 4, 2021, Gov. Murphy signed Executive Order 244, which terminated the “public health emergency” but expressly left in effect the “state of emergency” declared in EO 103.  At the same time, Gov. Murphy signed Senate Bill 3866, which among other things states, in Section 4, that the “state of emergency” declared in EO 103 “shall remain in effect until terminated by the Governor.”  As of this writing, Gov. Murphy has not acted to terminate the “state of emergency,” and it is unclear when he will do so.

In light of these circumstances, arguments can be made for a number of different effective dates for the 2020 NJ WARN amendments.  At the extreme, plaintiffs may argue for a September 2, 2021 effective date – 90 days after the actions taken by the Governor and Legislature on June 4, 2021.  We would disagree.  Based on events to date, we think the effective date should be no sooner than October 2, 2021.  The actual effective date, however, may be significantly later than that, and may be impacted by future actions by the Governor.  In the final analysis, this is an issue the courts will need to resolve.  Please reach out to your usual Littler contact for more information on this.

Once the amendments become effective, the most significant changes to New Jersey’s current WARN Act will include the following:

• The amended law applies to employers with at least 100 employees, regardless of tenure or hours of work.
• Notice is triggered by a termination of 50 employees, regardless of tenure or hours of work.
• Terminations across the state are aggregated to determine if the threshold is met, regardless of where within the state the terminations occur.
• Notice is increased to 90 days, not 60.
• Severance pay is automatic (though it integrates with existing employer severance plans, policies or CBA requirements) – with additional severance due if notice is not given.
• Employees may not waive their right to severance under the law without state or court approval.

A more detailed description of the changes can be found here, which was last updated June 8, 2021.