2012 -- S 2378 SUBSTITUTE A

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LC01354/SUB A/3

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- RHODE ISLAND WORKER

PROTECTION AND JOB LOSS NOTIFICATION ACT

     Introduced By: Senators Crowley, Sosnowski, DeVall, P Fogarty, and Perry

     Date Introduced: February 14, 2012

     Referred To: Senate Labor

It is enacted by the General Assembly as follows:

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     SECTION 1. Title 28 of the General Laws entitled "LABOR AND LABOR

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RELATIONS" is hereby amended by adding thereto the following chapter:

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     CHAPTER 55

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     RHODE ISLAND WORKER PROTECTION AND JOB LOSS NOTIFICATION ACT

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     28-55-1. Short title. – This act shall be known and may be cited as the “Rhode Island

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Worker Protection and Job Loss Notification Act.”

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     28-55-2. Definitions relative to notification of certain plant closings, transfers and

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mass layoffs. – (a) As used in this chapter:

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     (1) “Director” means the director of labor and training;

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     (2) “Department” means the department of labor and training;

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     (3) “Employer” means an individual or private business entity that directly or indirectly

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owns and operates an establishment that employs the workforce at that establishment;

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     (4) “Employee benefit plan” means an employee welfare benefit plan or an employee

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pension benefit plan or a plan which is both an employee welfare benefit plan and an employee

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pension benefit plan.

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     (5) “Establishment” means a single place of employment which has been operated by an

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employer for a period longer than three (3) years and that employs, or has employed within the

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preceding twelve (12) months, seventy-five (75) or more persons, but shall not include a

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temporary facility or a temporary project or undertaking, where the affected employees were

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hired with the understanding that their employment was limited to the duration of the facility or

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the project or undertaking. “Establishment” may be a single location or a group of contiguous

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locations, including groups of facilities which form an office or industrial park or separate

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facilities just across the street from each other;

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     (6) “Facility” means any location or locations within the state where any part of the

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employer’s business is performed by its employees;

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     (7) “Full-time employee” means an employee who has worked for the employer for an

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average of more than twenty (20) hours per week during the preceding six (6) months prior to the

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notification-triggering event;

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     (8) “Mass layoff” means a reduction in force which is not the result of a transfer or

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termination of operations and which results in the termination of employment at an establishment

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during any thirty (30) day period for fifty (50) or more full-time employees or for twenty-five

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(25) or more of the full-time employees representing one-third (1/3) or more of the full-time

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employees at the establishment;

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     (9) “Operating unit” means an organizationally distinct product, operation, or specific

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work function within or across facilities at a single establishment;

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     (10) “Part-time employee” means an employee who is employed for an average of fewer

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than twenty (20) hours per week or who has been employed for fewer than six (6) of the twelve

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(12) months preceding the date on which notice is required pursuant to this chapter;

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     (11) “Task force” means the plant closing task force established pursuant to section 28-

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55-6;

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     (12) “Termination of employment” means the layoff of an employee without a

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commitment to reinstate the employee to his/her previous employment within six (6) months of

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the layoff, except that “termination of employment” shall not mean a voluntary departure or

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retirement or a discharge or suspension for misconduct of the employee connected with the

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employment or any layoff of a seasonal employee or refer to any situation in which an employer

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offers to an employee, at a location inside the state and not more than fifty (50) miles from the

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previous place of employment, the same employment or a position with equivalent status,

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benefits, pay and other terms and conditions of employment, and, except that a layoff of more

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than six (6) months which, at its outset, was announced to be a layoff of six (6) months or less,

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shall not be treated as a termination of employment under this act if the extension beyond six (6)

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months is caused by business circumstances not reasonably foreseeable at the time of the initial

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layoff, and notice is given at the time it becomes reasonably foreseeable that the extension

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beyond six (6) months will be required;

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     (13) “Termination of operations” means the permanent or temporary shutdown of a single

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establishment, or of one or more facilities or operating units within a single establishment, except

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that “termination of operations” shall not include a termination of operations made necessary

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because of fire, flood, natural disaster, national emergency, act of war, civil disorder or industrial

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sabotage, decertification from participation in the Medicare and Medicaid programs as provided

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under titles XVIII and XIX of the federal “Social Security Act,” Pub. L. 74-271 (42 U.S.C. 1395

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et seq.) or license revocation;

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     (14) “Transfer of operations” means the permanent or temporary transfer of a single

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establishment, or one or more facilities or operating units within a single establishment, to

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another location, inside or outside of this state.

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     28-55-3. Requirements for establishment subject to transfer, termination of

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operations, mass layoffs. – (a) If an establishment is subject to a transfer of operations or a

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termination of operations which results, during any continuous period of not more than thirty (30)

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days, in the termination of employment of twenty-five (25) or more full-time employees, or if an

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employer conducts a mass layoff, the employer who operates the establishment or conducts the

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mass layoff shall:

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     (1) Provide, in the case of an employer who employs seventy-five (75) or more full-time

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employees, not less than sixty (60) days, or the period of time required pursuant to the federal

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“Worker Adjustment and Retraining Notification Act,” (29 U.S.C. 2101 et seq.), or any

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amendments thereto, whichever is longer, before the first termination of employment occurs in

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connection with the termination or transfer of operations, or mass layoff, notification of the

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termination or transfer of operations or mass layoff to the director of labor and training, the chief

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elected official of the municipality where the establishment is located, each employee whose

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employment is to be terminated and any collective bargaining units of employees at the

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establishment;

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     (2) Provide to each full-time employee whose employment is terminated and to whom the

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employer provides less than the number of days of notification required pursuant to subsection (a)

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of this section, severance pay equal to; (i) Back pay for each day of violation. The rate of

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severance pay provided by the employer pursuant to this subsection shall be the average regular

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rate of compensation received during the employee’s last three (3) years of employment with the

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employer or the final regular rate of compensation paid to the employee, whichever rate is higher.

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(ii) Benefits under an employee benefit plan, including the cost of medical expenses incurred

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during the employment loss which would have been covered under an employee benefit plan if

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the employment loss had not occurred.

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     (3) Severance pay pursuant to subdivision 28-55-3(a)(2) shall be calculated for the period

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of the violation, up to a maximum of sixty (60) days, but in no event for more than one-half (1/2)

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the number of days the employee was employed by the employer.

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     (4) The amount for which an employer is liable under subdivision 28-55-3(a)(2) shall be

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reduced by:

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     (i) Any wages paid by the employer to the employee for the period of the violation;

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     (ii) Any voluntary and unconditional payment by the employer to the employee that is not

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required by any legal obligation:

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     (iii) Any payment by the employer to a third party or trustee (such as premiums for health

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benefits or payments to a defined contribution pension plan) on behalf of and attributable to the

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employee for the period of the violation. In addition, any liability incurred under subdivision 28-

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55-3(a)(2) with respect to a defined benefit pension plan may be reduced by crediting the

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employee with service for all purposes under such a plan for the period of the violation; and

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     (iv) Any back pay and benefits provided by the employer to the employee pursuant to

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section (5) of the “Worker Adjustment and Retraining Notification Act,” Pub. L. 100-379 (29

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U.S.C. 2104), because of a violation of section (3) of that act (29 U.S.C. 2102) and;

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     (5) Provide the task force with the amount of on-site work-time access to the employees

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of the establishment that the task force determines is necessary for the task force to carry out its

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responsibilities pursuant to section 28-55-6.

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     (b) In determining whether a termination or transfer of operations or a mass layoff is

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subject to the notification requirements of this section, any terminations of employment for two

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(2) or more groups at a single establishment occurring with any ninety (90) day period, when

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each group has less than the number of terminations which would trigger the notification

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requirements of this section but the aggregate for all of the groups exceeds that number, shall be

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regarded as subject to the notification requirements unless the employer demonstrates that the

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cause of the terminations for each group is separate and distinct from the causes of the

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terminations for the other group or groups.

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     28-55-4. Contents of required notification. – (a) The notification provided pursuant to

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section 28-55-2 of this chapter shall include:

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     (1) A statement of the number of employees whose employment will be terminated in

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connection with the mass layoff or transfer or termination of operations of the establishment, the

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date or dates on which the mass layoff or transfer or termination of operations and each

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termination of employment will occur;

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     (2) A statement of the reasons for the mass layoff or transfer or termination of operations;

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     (3) A statement of any employment available to employees at any other establishment

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operated by the employer, and information regarding the benefits, pay and other terms and

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conditions of that employment and the location of the other establishment;

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     (4) A statement of any employee rights with respect to wages, severance pay, benefits,

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pension or other terms of employment as they relate to the termination, including, but not limited

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to, any rights based on a collective bargaining agreement or other existing employer policy;

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     (5) A disclosure of the amount of the severance pay which is payable pursuant to the

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subdivision 28-55-3(a)(2); and

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     (6) A statement of the employees’ right to receive from the task force pursuant to

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subsection 28-55-6(b), information, referral and counseling regarding: public programs which

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may make it possible to delay or prevent the transfer or termination of operations or mass layoff;

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public programs and benefits to assist  the employees; and employee rights based on law.

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     (b) The notification shall be in writing and, after the director has made a form for the

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notification available to employers, provided on that form. The director shall make the form

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available to employers not more than ninety (90) days following the effective date of this chapter.

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     28-55-5. Construction of chapter relative to collective bargaining agreements. – This

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chapter shall not be construed as limiting or modifying any provision of a collective bargaining

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agreement which requires notification, severance payment or other benefits on terms which are

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more favorable to employees than those required by this chapter.

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     28-55-6. Establishment of task force. – (a) There is established, in the department of

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labor and training, a task force. The task force shall be approved by the director. The purpose of

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the task force is to provide appropriate information, referral and counseling, as rapidly as

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possible, to workers who are subject to plant closings or mass layoffs;

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     (b) In the case of each transfer or termination of the operations in an establishment which

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results in the termination of the lesser of one-third (1/3) of the employees (in the case of a

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business with only seventy-five (75) employees) or fifty (50) employees (in the case of a business

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with greater than one hundred fifty (150) employees), the task force shall:

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     (1) Offer to meet with the representatives of the management of the establishment to

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discuss available public programs which may make it possible to delay or prevent the transfer or

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termination of operations, including economic development incentive and workforce

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development programs;

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     (2) Meet on site with workers and provide information, referral and counseling regarding:

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     (i) Public programs or benefits which may be available to assist the employees, including,

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but not limited to, unemployment compensation benefits, job training or retraining programs, and

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job search assistance; and

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     (ii) Employee rights based on this act or any other law which applies to the employees

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with respect to wages, severance pay, benefits, pensions or other terms of employment as they

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relate to the termination of employment.

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     28-55-7. Initiation of suit by aggrieved employee, former employee. – An aggrieved

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employee or former employee or his authorized representative may initiate suit in superior court

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under this act either individually or on behalf of employees or former employees affected by a

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violation of the provisions of this chapter. If an action is undertaken on behalf of affected

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employees or former employees, the party initiating the action shall inform the department, which

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shall notify each affected employee or former employee. If the court finds the employer has

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violated the provision of this chapter, it shall award to the aggrieved present or former

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employees:  costs of the action, including reasonable attorneys’ fees; and compensatory damages,

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including lost wages, the value of the cost of any benefits to which the employee would have

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been entitled had his or her employment not been lost, including the cost of any medical expenses

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incurred by the employee that would have been covered under an employee benefit plan, benefits

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and other remuneration. Any award of compensatory damages for lost wages shall be limited to

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the amount of severance pay required pursuant to subdivision 28-55-3(a)(2).

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     28-55-8. Liability of employer. – An employer who fails to give notice as required by

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section 28-55-3 is subject to a civil penalty of not more than five hundred dollars ($500) per

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employee affected for each day of the employer’s violation. The employer is not subject to a civil

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penalty under this section, however, if the employer pays to all applicable employees the amounts

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for which the employer is liable under section 28-55-3 within three (3) weeks from the date the

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employer actually conducts the mass layoff, relocation, or termination.

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     28-55-9. Exemption to notification. – (a) An employer is not required to comply with

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the notice requirement contained in subdivision 28-55-3(a)(1) if the court determines that all of

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the following conditions exist:

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     (1) As of the time that notice would have been required, the employer was actively

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seeking capital or business;

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     (2) The capital or business sought, if obtained, would have enabled the employer to avoid

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or postpone the relocation or termination;

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     (3) The employer reasonably and in good faith believed that giving the notice required by

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section (2) would have precluded the employer from obtaining the needed capital or business;

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     (b) The court may not determine that the employer was actively seeking capital or

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business under subsection (a)_unless the employer provides the court with both of the following:

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     (1) A written record consisting of all documents relevant to the determination of whether

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the employer was actively seeking capital or business;

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     (2) An affidavit verifying the contents of the documents contained in the record;

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     (c) The affidavit provided to the court pursuant to subdivision (b)(2) of this section shall

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contain a declaration signed under penalty of perjury stating that the affidavit and the contents of

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the documents contained in the record submitted pursuant to subdivision (b)(1) of this section are

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true and correct;

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     (d) This section does not apply to notice of a mass layoff as defined in subdivision 28-55-

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2(7).

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     28-55-10. Exemption from notification - unforeseen circumstances. – (a) An employer

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is not required to provide notice sixty (60) days prior to a termination of operations or mass layoff

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as provided for in subdivision 28-55-3(a)(1) if the court determines that any one of the following

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conditions are met:

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     (1) Business circumstances occurred that were not reasonably foreseeable at the time that

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the sixty (60) day notice would have been required; or

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     (2) The employer must, at the time notice is actually given, provide a statement of

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explanation for reducing the notice period in addition to the other notice requirements in section

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28-54-4; or

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     (3) An important indicator of a reasonably unforeseeable business circumstance is that

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the circumstance is caused by some sudden, dramatic, and unexpected action or condition outside

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the employer’s control; or

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     (4) The employer must exercise commercially reasonable business judgment as would a

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similarly situated employer in predicting the demands of the employer’s particular market. The

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employer is not required to accurately predict general economic conditions that also may affect

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demand for products or services.

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     (b) An employer relying on this section shall give as much notice as is practicable. The

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court shall have discretion to reduce the notification provision from sixty (60) days under this

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section to a shorter period, and to impose adjusted penalties and liability to employees in concert

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with this reduction.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO LABOR AND LABOR RELATIONS -- RHODE ISLAND WORKER

PROTECTION AND JOB LOSS NOTIFICATION ACT

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     This act would create the “Rhode Island Worker Protection and Job Loss Notification

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Act” which would require an employer to give certain notifications to employees in businesses

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with at least seventy-five (75) employees, operating for more than three (3) years, where at least

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one-third (1/3) of the workforce would be subject to a mass layoff or temporary suspension of

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work. This act would also create a task force within the department of labor and training to give

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employment counseling to the employees, and to work with the employer in an attempt to avoid

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the loss of jobs.

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     This act would take effect upon passage.

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LC01354/SUB A/3

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