2014 -- S 2758 SUBSTITUTE A

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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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, Metts, Pichardo, Goldin, and Cool Rumsey

     Date Introduced: March 06, 2014

     Referred To: Senate Labor

     It is enacted by the General Assembly as follows:

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

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

CHAPTER 56

RHODE ISLAND WORKER PROTECTION AND JOB LOSS NOTIFICATION ACT

     28-56-1. Short title. – This act shall be known and may be cited as the “Rhode Island

Worker Protection and Job Loss Notification Act.”

     28-56-2. Definitions relative to notification of certain plant closings, transfers and

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

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

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

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

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

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

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

pension benefit plan.

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

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

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

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

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

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

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

facilities just across the street from each other;

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

employer’s business is performed by its employees;

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

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

notification-triggering event;

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

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

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

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

employees at the establishment;

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

work function within or across facilities at a single establishment;

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

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

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

     (11) “Task force” means the plant closing task force established pursuant to § 28-56-6;

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

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

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

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

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

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

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

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

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

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

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

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

beyond six (6) months will be required;

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

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

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

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

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

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

seq.) or license revocation;

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

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

another location, inside or outside of this state.

     28-56-3. Requirements for establishment subject to transfer, termination of

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

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

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

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

mass layoff shall:

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

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

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

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

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

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

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

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

establishment;

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

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

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

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

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

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

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

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

the employment loss had not occurred.

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     (3) Severance pay pursuant to § 28-56-3(a)(2) shall be calculated for the period of the

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

number of days the employee was employed by the employer.

     (4) The amount for which an employer is liable under § 28-56-3(a)(2) shall be reduced

by:

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

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

required by any legal obligation:

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

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

employee for the period of the violation. In addition, any liability incurred under § 28-56-3(a)(2)

with respect to a defined benefit pension plan may be reduced by crediting the employee with

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

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

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

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

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

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

responsibilities pursuant to § 28-56-6.

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

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

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

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

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

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

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

terminations for the other group or groups.

     28-56-4. Contents of required notification. – (a) The notification provided pursuant to §

28-56-3 of this chapter shall include:

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

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

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

termination of employment will occur;

     (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

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

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

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

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

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

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

28-56-3(a)(2); and

     (6) A statement of the employees’ right to receive from the task force pursuant to § 28-

56-6(b), information, referral and counseling regarding: public programs which may make it

possible to delay or prevent the transfer or termination of operations or mass layoff; public

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

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

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

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

     28-56-5. Construction of chapter relative to collective bargaining agreements. – This

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

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

more favorable to employees than those required by this chapter.

     28-56-6. Establishment of task force. – (a) There is established, in the department of

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

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

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

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

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

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

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

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

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

termination of operations, including economic development incentive and workforce

development programs;

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

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

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

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job search assistance; and

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

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

relate to the termination of employment.

     28-56-7. Initiation of suit by aggrieved employee, former employee. – An aggrieved

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

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

violation of the provisions of this chapter. If the court finds the employer has violated the

provision of this chapter, it shall award to the aggrieved present or former employees:  costs of

the action, including reasonable attorneys’ fees; and compensatory damages, including lost

wages, the value of the cost of any benefits to which the employee would have been entitled had

his or her employment not been lost, including the cost of any medical expenses incurred by the

employee that would have been covered under an employee benefit plan, benefits and other

remuneration. Any award of compensatory damages for lost wages shall be limited to the amount

of severance pay required pursuant to § 28-56-3(a)(2).

     28-56-8. Liability of employer. – An employer who fails to give notice as required by §

28-56-3 is subject to a civil penalty of not more than five hundred dollars ($500) per employee

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

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

which the employer is liable under § 28-56-3 within three (3) weeks from the date the employer

actually conducts the mass layoff, relocation, or termination.

     28-56-9. Exemption to notification. – (a) An employer is not required to comply with

the notice requirement contained in § 28-56-3(a)(1) if the court determines that all of the

following conditions exist:

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

seeking capital or business;

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

or postpone the relocation or termination;

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

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

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

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

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

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;

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

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

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

true and correct;

     (d) This section does not apply to notice of a mass layoff as defined in § 28-56-2(7).

     28-56-10. Exemption from notification - unforeseen circumstances. – (a) An employer

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

as provided for in § 28-56-3(a)(1) if the court determines that any one of the following conditions

are met:

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

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

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

explanation for reducing the notice period in addition to the other notice requirements in §§ 28-

56-3 and 28-54-4; or

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

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

the employer’s control; or

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

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

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

demand for products or services.

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

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

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

with this reduction.

     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

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

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

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

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

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

the loss of jobs.

     This act would take effect upon passage.

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