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List of Forms by Chapter - Chapter 1 — Transactions Due Diligence
- I. [1.1] Introduction
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II. [1.2] General Considerations - III. Labor Issues
- [1.6] Successorship Analysis and Purchaser’s Obligations with Respect to Predecessor’s Union
- [1.7] Impact of Different Types of Collective-Bargaining Agreement Provisions on Successor Employer
- [1.8] Successors and Assigns Clauses
- [1.9] Management Rights Clauses
- [1.10] Arbitration Clauses
- [1.11] Other Contract Provisions That May Be Triggered by a Sale
- [1.12] Due Diligence Geared Toward Other Federal Statutes and Employment Issues
- [1.13] Fair Labor Standards Act and Other Wage and Hour Matters
- [1.14] Workers’ Compensation and Worker Safety Matters
- [1.15] Joint Employer and Co-Employer Issues
- [1.16] Due Diligence Concerning Internal Complaint Remedies and Reporting Procedures
- [1.17] Employment Litigation
- [1.18] Personnel Policies and Handbooks
- [1.19] Affirmative Action Plan and Diversity Issues
- [1.20] Worker Adjustment and Retraining Notification Act
- [1.21] Individual Employment Consulting and Independent Contractor Agreements
- [1.22] Employee Benefits
- IV. [1.23] Conclusion
- V. [1.24] Employment and Employee Benefits Due-Diligence Checklist
- Chapter 2 — Labor, Employment, and Benefits Transaction Terms
- I. [2.1] Introduction
- II. Definition of “Business Employee”
- III. Definition of “Collective-Bargaining Agreement”
- IV. Employees and Independent Contractors (Due Diligence)
- V. Employment Liability
- VI. Assumption of Collective-Bargaining Agreements
- VII. Non-Assumption of Collective-Bargaining Agreements
- VIII. Allocation of Workers’ Compensation Liability
- IX. Allocation of Health-Related Benefit Claims
- X. Seller Employment Obligations and Compliance with Laws
- XI. No Material Changes
- XII. Worker Adjustment and Retraining Notification Act Compliance
- XIII. Absence of Conflicting Agreements
- XIV. Litigation Cooperation
- XV. Employee Records
- XVI. Maintenance of Books and Records
- XVII. Public Announcements
- XVIII. Meeting with Labor Organizations
- XIX. Effects Bargaining
- XX. Effect of Strike on Transaction
- XXI. Offers of Employment
- XXII. Termination of Transferred Employees
- XXIII. Nonsolicitation of Transferred Employees
- XXIV. Employee Benefits
- XXV. Vacation Benefits
- XXVI. Employee Indebtedness
- Chapter 3 — Obligations Under the National Labor Relations Act
- I. [3.1] Seller-Predecessor’s Bargaining Obligations
- II. Seller-Predecessor’s Obligations Under a Contractual Successors and Assigns Clause
- III. Purchaser-Successor’s Duty To Bargain with the Seller-Predecessor’s Union
- IV. Effect of the Seller-Predecessor’s Collective-Bargaining Agreement on the Purchaser-Successor
- V. [3.22] Purchaser-Successor’s Duty To Arbitrate Disputes Under Seller-Predecessor’s Contract
- VI. [3.23] Purchaser-Successor’s Duty To Remedy Seller-Predecessor’s Unfair Labor Practices
- VII. Unlawful Discrimination and Interference with Protected Rights Under the National Labor Relations Act
- VIII. [3.28] Relationship Between Seller-Predecessor and Purchaser-Successor
- Chapter 4 — The Worker Adjustment and Retraining Notification Act
- I. [4.1] Introduction
- II. The Worker Adjustment and Retraining Notification Act’s Notice Requirements
- [4.2] Notice Requirements Generally
- [4.3] Employer Is Required To Provide Notice
- [4.4] Governments and Nonprofit Organizations
- [4.5] Independent Contractors and Subsidiaries
- [4.6] Employees Counted To Measure Employer Size
- [4.7] Individuals Not Employers
- [4.8] Employers in Bankruptcy
- [4.9] Secured Creditors and Portfolio Companies
- Persons Entitled to Notice
- [4.10] Each Affected Employee
- [4.11] Laid-Off Employees and Part-Time Employees
- [4.12] Union Representatives
- [4.13] Local Government and State Dislocated Worker Unit
- [4.14] Worker Adjustment and Retraining Notification Notice Content Requirements
- [4.15] Delivery of Notice
- [4.16] Supplemental Notice
- [4.17] Conditional Notice
- [4.18] Defective Notice and Good Faith
- [4.19] Liability for Failure To Provide Required Notice
- III. Events Requiring Advance Notice
- IV. Key Terms Under the Worker Adjustment and Retraining Notification Act
- [4.24] Employment Loss
- [4.25] Termination
- [4.26] Layoff Exceeding Six Months
- [4.27] Reduction in Hours
- [4.28] Defined Employee Types
- [4.29] Part-Time Employees
- [4.30] Seasonal and Temporary Employees
- [4.31] Independent Contractor Employees
- [4.32] Supervisors and Managers
- [4.33] “Bumped” Employees
- [4.34] Single Site of Employment
- [4.35] Traveling or “Outstationed” Employees
- [4.36] Foreign Sites
- [4.37] Facility
- [4.38] Operating Unit
- [4.39] Temporary Project Employees
- V. Exclusions, Exemptions, and Exceptions from Notice Requirements
- [4.40] Sale-of-Business Exclusion
- [4.41] Relocation and Consolidation Transfer Exclusion
- [4.42] Transferred Employees
- [4.43] Reasonable Commuting Distance
- [4.44] Temporary Project Exemption
- [4.45] Strike or Lockout Exemption
- [4.46] Exceptions to Full 60-Day Notice
- [4.47] Faltering Company
- [4.48] Unforeseeable Business Circumstances
- [4.49] Natural Disaster
- VI. Enforcement
- [4.50] Civil Action
- [4.51] Jury Trial
- [4.52] Aggrieved Employees
- [4.53] Accrual of Claim
- [4.54] Statute of Limitations
- [4.55] Remedies
- [4.56] Exclusive Remedy
- [4.57] No Punitive Damages
- [4.58] Prejudgment Interest
- [4.59] Backpay
- [4.60] Benefits
- [4.61] Civil Penalty to Local Government
- [4.62] Attorneys’ Fees
- [4.63] Reductions and Offsets from Damages
- [4.64] Effect on Unemployment Compensation
- [4.65] Good Faith
- [4.66] Waiver and Release Defense
- [4.67] Class Actions
- VII. Alternative Strategies
- VIII. Other Issues
- IX. State and Local Law Analogs to the Worker Adjustment and Retraining Notification Act
- X. [4.81] Simplified Worker Adjustment and Retraining Notification Counting Rules
- XI. Appendix — Sample Worker Adjustment and Retraining Notification Notices
- Chapter 5 — Reductions in Force
- I. [5.1] Introduction
- II. [5.2] Justifying the Business Need for a Reduction in Force
- [5.3] Benefits of Creating a Business Case
- [5.4] Creating the Business Case
- [5.5] Assemble the Planning Team
- [5.6] Communication with Employees, Stakeholders, and the Business Community
- Selecting Employees for Termination and Retention
- [5.7] Identify Job Skills To Be Eliminated
- [5.8] Develop Job Descriptions for Remaining/New Positions
- [5.9] Legal Obstacles to Termination
- [5.10] Collective-Bargaining Agreements
- [5.11] Written Contracts and Implied Promises
- [5.12] Skill Set Appraisal
- [5.13] Forced Ranking
- [5.14] Seniority
- [5.15] International Considerations
- [5.16] Freeze Hiring
- IV. [5.17] Ending the Employment Relationship
- Severance Agreements
- [5.18] Strategic Considerations
- Drafting Enforceable Releases
- [5.19] Prior to Passage of the Older Workers Benefit Protection Act
- Older Workers Benefit Protection Act Requirements for Individual Releases
- [5.20] Overview
- [5.21] In writing in plain language
- [5.22] Reference to the Age Discrimination in Employment Act
- [5.23] No waiver of future rights
- [5.24] Consideration
- [5.25] Advice to seek attorney consult
- [5.26] Time periods
- Older Workers Benefit Protection Act Requirements for Group Releases
- [5.27] Overview
- [5.28] Numerosity requirement
- [5.29] Time periods
- [5.30] Disclosure of job titles and ages of eligible or selected employees
- [5.31] Other Considerations at Separation
- V. Post-Reduction in Force Concerns — Lawsuits
- [5.32] Discrimination Suits
- [5.33] Administrative Requirements
- [5.34] Disparate Impact
- [5.35] Age Discrimination in Employment Act
- [5.36] Americans with Disabilities Act Amendments Act of 2008
- [5.37] Title VII of the Civil Rights Act
- [5.38] Disparate Treatment
- [5.39] Direct Method of Proof
- [5.40] Indirect Method of Proof
- [5.41] Mini-reduction in force
- [5.42] Pretext in the reduction in force context
- [5.43] Motivating Factor vs. “But for” Requirement
- [5.44] Employee Leave Laws
- [5.45] Family and Medical Leave Act of 1993
- [5.46] Uniformed Services Employment and Reemployment Rights Act of 1994
- [5.47] State Law Considerations
- Chapter 6 — Alternatives to Involuntary Employment Terminations
- I. [6.1] Scope of Chapter
- II. [6.2] Voluntary Separation Programs
- III. [6.7] Transfers, Relocations, and Demotions
- Designing the Selection Process
- [6.8] Selecting Decision-Makers
- [6.9] Training Decision-Makers
- [6.10] Selection Criteria
- [6.11] Business Justification
- [6.12] Establishing Internal Oversight
- [6.13] Potential Claims
- [6.14] Retaliation Claims
- [6.15] Breach-of-Contract Claims
- [6.16] Worker Adjustment and Retraining Notification Act Claims
- [6.17] Legal Review of Selections
- IV. [6.18] Reduction in Hours and/or Compensation
- V. [6.19] Conclusion
- Chapter 7 — Employee Benefits Issues in Reductions in Force
- I. [7.1] Introduction
- II. [7.2] Severance Programs
- [7.3] Designing a Severance Program
- [7.4] Employee Retirement Income Security Act of 1974 Coverage
- [7.5] Fort Halifax Packing Co. v. Coyne
- [7.6] Informal Severance Policy
- [7.7] ERISA Welfare Plan vs. ERISA Pension Plan
- Advantages and Obligations of ERISA Severance Pay Policy
- [7.8] Advantages
- [7.9] Obligations
- [7.10] Summary Plan Description
- [7.11] Summary of Material Modifications
- [7.12] Form 5500
- [7.13] Requested Documents
- [7.14] Internal Revenue Code §409A
- [7.15] Federal Tax Withholding Obligations (United States v. Quality Stores, Inc.)
- III. [7.16] Tax-Qualified Retirement Plans
- [7.17] Benefits Provided
- [7.18] Partial Plan Termination Issues
- [7.19] Significant Percentage Test
- [7.20] Exclude Voluntary Separations
- [7.21] “To the Extent Funded”
- [7.22] Partial Termination Checklist
- [7.23] Pension Benefit Guaranty Corporation Reportable Events
- [7.24] Reportable Events
- [7.25] Reportable Event Filing
- [7.26] Penalty for Failure To Make Required Reportable Event Filing
- IV. [7.27] Health and Welfare Plans
- V. [7.31] Multiemployer Withdrawal Liability
- Chapter 8 — Bankruptcy Considerations
- I. Introduction
- II. [8.3] Priority in Bankruptcy
- III. [8.7] Automatic Stay
- IV. Worker Adjustment and Retraining Notification Act Issues
- V. [8.12] Collective Bargaining in the Bankruptcy Context
- VI. [8.13] Retiree Benefits in the Bankruptcy Context
- VII. [8.14] Assignment of Collective-Bargaining Agreements
- VIII. [8.15] Section 363 Sales
- IX. [8.16] Discharge
- X. [8.17] Conclusion
- Chapter 9 — Workers’ Compensation
- I. [9.1] General Aspects of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act
- II. [9.2] Exclusive Remedy Provisions and Exceptions
- III. [9.3] Employer’s Liability for Contribution, Spoliation of Evidence, and Retaliatory Discharge
- IV. Workers’ Compensation Considerations with Sales or Restructuring of Businesses and Enterprises
- V. Management of Claims Subsequent to a Business Transaction
- VI. Workers’ Compensation and Occupational Disease Considerations with Employment Termination or Reductions in Workforce
- Chapter 10 — Immigration Considerations
- I. [10.1] Introduction
- II. [10.2] Issues in Corporate Restructuring
- Brief Overview of Common Employment Visa Classifications
- [10.3] H-1B Visas
- [10.4] L-1 Intracompany Transfer Visas
- [10.5] TN Visas
- [10.6] Effect of Corporate Restructuring on Visa Status
- [10.7] Retention of H-1B Status Following Corporate Restructuring
- [10.8] International Travel
- [10.9] Increased Scrutiny
- [10.10] Other Changes in Employment — H-1B Transfer Petition
- [10.11] H-1B Portability
- [10.12] L-1 Visa Issues
- [10.13] I-9 Issues
- III. [10.14] Issues Regarding Reductions in Force
- IV. [10.19] Conclusion
- James G. Aldrich
James G. Aldrich
James G. Aldrich is a Member at Dykema Gossett PLLC, in Bloomfield Hills, Michigan, where he leads the firm’s Immigration Team in the Labor and Employment Department. He has been recognized in The Best Lawyers in America for Immigration Law (2021 – present) and by The Legal 500 (United States) for Labor and Employment — Immigration (2017 – 2019). He is a member of the State Bar of Michigan and the American Immigration Lawyers Association. Aldrich earned his B.A. from Michigan State University and his J.D. from the University of Detroit Mercy School of Law.
- Joseph P. Basile
Joseph P. Basile
Joseph P. Basile has concentrated his practice in workers’ compensation in all of its levels and civil litigation representing employers, insurers, and third-party administrators. He also has experience in civil litigation and has represented employees in workers’ compensation and social security disability claims. He is a Chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program. Mr. Basile has served as a faculty member for annual IICLE® Workers’ Compensation Institutes, and he writes the monthly workers’ compensation column for IICLE® FLASHPOINTS. Mr. Basile received his B.S.B.A. in Business Administration from Saint Louis University and his J.D. with distinction from the University of Illinois Chicago School of Law, where he was a member of the law review.
- Paul E. Bateman
Paul E. Bateman
Paul E. Bateman is a Shareholder in Littler Mendelson PC’s Chicago office, where he focuses his practice in litigation and trials, labor management relations, appellate practice, and workplace safety and health (OSHA and MSHA). Mr. Bateman is a member of the Labor and Employment and Litigation Sections of the American Bar Association and a former member of the IICLE® Board of Directors. He received his J.D. from the University of Michigan and his B.S. from Illinois State University.
- Bryan R. Bienias
Bryan R. Bienias
Bryan R. Bienias is an associate at Seyfarth Shaw LLP, in Chicago, where he focuses his practice on labor and employment. Mr. Bienias is a member of the American and Chicago Bar Associations. He earned his J.D. magna cum laude from Chicago-Kent of Law, Illinois Institute of Technology, where he was student editor of the Employee Rights and Employment Policy Journal, earned the Order of the Coif and a Labor and Employment Certificate, and was on the Dean’s honor list.
- Daniel R. Bryer
Daniel R. Bryer
Daniel R. Bryer is counsel for Allstate Insurance Company, in Northbrook. Mr. Bryer received his B.A. from Indiana University, his J.D. magna cum laude from The John Marshall Law School, and his LL.M. degree in Business Law from Loyola University Chicago School of Law.
- Joshua L. Ditelberg
Joshua L. Ditelberg
Joshua L. Ditelberg is a Partner at Seyfarth Shaw LLP in Chicago, where he maintains a broad-based labor and employment practice. His practice includes a particular focus on labor relations and the employment-related aspects of corporate transactions and business restructuring. He is a Fellow of the College of Labor and Employment Lawyers and the American Bar Foundation, and he is a former Adjunct Professor of Law at the University of Illinois Chicago College of Law. Mr. Ditelberg received his B.A. summa cum laude from the University of Pennsylvania, his M.A. with honors from the University of Pennsylvania, and his J.D. magna cum laude from the University of Michigan Law School, Order of the Coif.
- Kenneth R. Dolin
Kenneth R. Dolin
Kenneth R. Dolin is a Partner at the Chicago office of Seyfarth Shaw LLP, where he concentrates his practice in labor and employment law. He is a Fellow in The College of Labor and Employment Lawyers and a member of the American Bar Association’s Section of Labor & Employment Law. He received his B.A. from the University of Wisconsin–Madison, his M.I.L.R. from Cornell University, his LL.M. from New York University, and his J.D. from the University of Illinois College of Law.
- Jeremy M. Downs
Jeremy M. Downs
Jeremy M. Downs is a Principal at Goldberg Kohn Ltd., in Chicago, where he focuses on bankruptcy and creditors’ rights. He has been named by Chambers USA as a Leading Lawyer in the United States in Bankruptcy/Restructuring since 2010. Mr. Downs received his A.B. in government cum laude from Harvard University and his J.D. from Northwestern University Pritzker School of Law.
- Jeffrey C. Kauffman
Jeffrey C. Kauffman
Jeffrey C. Kauffman is currently retired from the Illinois Bar. Mr. Kauffman was previously a labor and employment attorney with the Chicago office of Littler Mendelson P.C., where he represented management in all aspects of labor and employment law. He also was a member of the Illinois Bar Association, Section on Labor and Employment Law; the State Bar of Michigan, Labor and Employment Law Section; and the American Bar Association, Section of Labor and Employment Law and the Committee on Practice and Procedure under the NLRA. Mr. Kauffman received his B.A. summa cum laude from Albion College, where he was elected to Phi Beta Kappa, and his J.D. from the University of Michigan Law School.
- Prisca M. Kim
Prisca M. Kim
Prisca M. Kim is a Principal at Goldberg Kohn in Chicago, where she practices in the Bankruptcy and Creditors’ Rights Group. While attending law school, Ms. Kim was a part of the Employment Discrimination Project for the Edwin F. Mandel Legal Aid Clinic and served as an extern to the Honorable Michael T. Mason of the U.S. District Court for the Northern District of Illinois. She is a member of the American Bankruptcy Institute, the Turnaround Management Association, and the American Bar Association. She received her B.A. from the University of California, Los Angeles, and her J.D. from the University of Chicago Law School.
- Ronald J. Kramer
Ronald J. Kramer
Ronald J. Kramer is a Partner with the Chicago office of Seyfarth Shaw LLP, where he practices in the areas of labor and employment law. He is a Past Chair of the American Bar Association Section of State and Local Government Law, a Super Lawyer in the area of employment and labor, and President of the Howard Area Community Center Board of Directors. Mr. Kramer received his B.A. from Michigan State University magna cum laude and his J.D. with high honors from Chicago-Kent College of Law.
- Steven R. Lifson
Steven R. Lifson
Steven R. Lifson is a retired Partner with Seyfarth Shaw LLP, in Chicago, and concentrated his practice on employee benefits and ERISA. Mr. Lifson is a member of the ESOP Association; the National Center for Employee Ownership; and the American, Illinois, and Chicago Bar Associations. Mr. Lifson obtained his undergraduate degree with honors from Boston University. He received his J.D. from the University of Illinois College of Law and his M.S. with honors from the University of Illinois Chicago College of Law.
- Darren M. Mungerson
Darren M. Mungerson
Darren M. Mungerson is a Shareholder with Littler Mendelson, P.C., in Chicago, where he focuses his practice on labor and employment law. Mr. Mungerson is a member of the Illinois State and American Bar Associations. He has been named one of the Best Lawyers in America from 2021 to 2022. He earned his J.D. cum laude from Harvard Law School and his B.S. with Bronze Tablet (highest honors) from the University of Illinois Urbana-Champaign.
- Michael L. Sullivan
Michael L. Sullivan
Michael L. Sullivan is a Principal at Goldberg Kohn in Chicago and Chair of the firm’s Labor and Employment Group. He serves on the Board of Directors of the Chicago Labor and Employment Relations Association and is a member of the American Bar Association (Tort and Insurance Practice Section — Employee Relations Committee and Labor and Employment Section), Illinois Bar Association (Labor and Employment Section), and Chicago Bar Association (Labor and Employment Section). Mr. Sullivan received his B.S. with high honors and his J.D. from the University of Illinois, where he was a Harno Fellow and was awarded various honors, including the Rickert Award for Excellence in Moot Court.
- Ryan H. Vann
Ryan H. Vann
Ryan H. Vann is a Partner with Baker McKenzie, in Chicago, where he concentrates his practice on labor and employment, representing clients in litigation, counseling, and complex corporate transactions. Mr. Vann has been named a Rising Star by Super Lawyers. He received his J.D. cum laude from Indian University School of Law and his B.S. from Indiana University.
Labor and Employment Issues in Transactions, Business Restructuring, and Workforce Reductions (ARCHIVED 2018 EDITION)
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