2012 -- H 7565 SUBSTITUTE A | |
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LC01353/SUB A/2 | |
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STATE OF RHODE ISLAND | |
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IN GENERAL ASSEMBLY | |
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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 | |
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     Introduced By: Representatives Slater, Blazejewski, DaSilva, and Diaz | |
     Date Introduced: February 15, 2012 | |
     Referred To: House 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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LC01353/SUB A/2 | |
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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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LC01353/SUB A/2 | |
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