(a) An employer who fails to give notice to an employee entitled to receive notice under this Part, is liable to each such employee, including part-time employees for:

1. (1) back pay at the average regular rate of compensation received by the employee during the three years prior to the date of termination, or the employee’s final rate of compensation, whichever is higher. The “average regular rate of compensation” is calculated by dividing the total regular and overtime wages earned by the employee during the three years prior to the date of termination by the number of days worked over the same three year period. The “final rate of compensation” is calculated by dividing the amount received by the employee in his or her last paycheck prior to termination divided by the number of days worked. For calculations involving salary or commission employees, the number of days worked is the number of days the employee was in active employment status;
2. (2) in the case of an employee who became an employee of his/her current employer through a merger or consolidation of his/her former employer with/into his/her current employer, such employee's history of wage and benefit payments from his/her prior employer shall be treated as if such wages and benefits were earned with his/her current employer for purposes of making any calculations that are required under this Part, including the payment of back wages and benefits due;
3. (3) 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 that the commissioner will consider shall include, but not be limited to: health benefits, private disability coverage, life insurance, employer paid retirement contributions, and vacation leave.

(c) The amount of an employer’s liability, under this section, shall be reduced by the following:

1. (1) Any wages, except vacation moneys accrued before the period of the employer’s violation, paid by the employer to the employee during the period of the employer’s violation. Wages are obtained using the same calculation in paragraph (a)(1) of this section.
2. (2) Any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligations and that the employer can demonstrate were made prior to the issuance of the commissioner’s final determination. Such payments shall be made by check or through a previously agreed upon direct deposit arrangement. Severance packages or other payments required pursuant to employee contracts, collective bargaining agreements, through other legal obligations, or under law shall not be credited against liability under this section. Promises to make future payments shall not be credited against liability under this section.
3. (3) Any payments by the employer to a third party trustee, such as premiums for health benefits or payments to a defined contribution plan, on behalf of and attributable to the employee for the period of the violation.
4. (4) Any liability paid by the employer under any applicable Federal law governing notification of mass layoffs, plant closings, relocations, or covered reductions in work hours.
5. (5) In an administrative proceeding by the commissioner, any liability paid by the employer prior to the commissioner’s determination as the result of a private action brought under this act.
6. (6) In a private action brought under this act, any liability paid by the employer in an administrative proceeding by the commissioner prior to the adjudication of such private action.