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List of Forms by Chapter - Chapter 1 — Transactions Due Diligence
- Chapter Summary
- 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] Appendix — Employment and Employee Benefits Due-Diligence Information To Be Gathered
- Chapter 2 — Labor, Employment, and Benefits Transaction Terms
- Chapter Summary
- 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
- Chapter Summary
- 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
- Chapter Summary
- 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 Act 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
- Chapter Summary
- I. [5.1] Introduction
- II. [5.2] Justifying the Business Need for a Reduction in Force
- III. Implementing the Reduction in Force
- [5.5] Assemble the Planning Team
- [5.6] Communication with Employees, Stakeholders, and the Business Community
- Selecting Employees for Termination and Retention
- [5.7] Identifying Job Skills To Be Eliminated
- [5.8] Developing 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] National Labor Relations Act
- [5.32] Other Considerations at Separation
- [5.33] Illinois Freedom to Work Act
- V. Post-Reduction in Force Concerns — Lawsuits
- [5.34] Discrimination Suits
- [5.35] Administrative Requirements
- [5.36] Disparate Impact
- [5.37] Age Discrimination in Employment Act
- [5.38] ADA Amendments Act of 2008
- [5.39] Title VII of the Civil Rights Act of 1964
- [5.40] Disparate Treatment
- [5.41] Direct Method of Proof
- [5.42] Indirect Method of Proof
- [5.43] “Reverse discrimination” claims
- [5.44] Mini-reduction in force
- [5.45] Pretext in the reduction in force context
- [5.46] Motivating Factor vs. But-For Requirement
- [5.47] Employee Leave Laws
- [5.48] Family and Medical Leave Act of 1993
- [5.49] Uniformed Services Employment and Reemployment Rights Act of 1994
- [5.50] State Law Considerations
- Chapter 6 — Alternatives to Involuntary Employment Terminations
- Chapter Summary
- 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
- Chapter Summary
- 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
- Chapter Summary
- 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] Withdrawal Liability
- XI. [8.18] Conclusion
- Chapter 9 — Workers’ Compensation
- Chapter Summary
- 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 of Mergers and Acquisitions
- Chapter Summary
- 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 Terminations and 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). Aldrich is a member of the State Bar of Michigan and the American Immigration Lawyers Association. He 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 concentrates his Chicago-based practice in workers’ compensation and civil litigation. He is a member of the Chicago and Illinois State Bar Associations and a chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program. He has been a faculty member at annual IICLE® workers’ compensation seminars and an author for several of the Institute’s publications, including most recently the chapter on workers’ compensation in LABOR AND EMPLOYMENT ISSUES IN TRANSACTIONS, BUSINESS RESTRUCTURING, AND WORKFORCE REDUCTIONS (IICLE®, 2026). Basile received his B.S. from St. Louis University and his J.D. with distinction from University of Illinois Chicago School of Law, where he was a member of The John Marshall 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 labor and employment law. He received his JD from the University of Michigan and his BS from Illinois State University.
- Alyana Abellar Bruck
Alyana Abellar Bruck
Alyana Abellar Bruck is an associate at Blacha Law Office LLC in Naperville, where she focuses her practice on family law, probate, and immigration. She is a member of the DuPage County Bar Association, where she serves as Vice Chair of the Immigration Law Committee. Ms. Bruck received her JD from the Michigan State University College of Law.
- Matthew R. Custardo
Matthew R. Custardo
Matthew R. Custardo concentrates his practice in commercial litigation, election law, and employment law at Custardo Law, LLC, in Naperville. He received his BS from Lewis University and his JD from the University of Illinois Chicago College of Law.
- Joshua L. Ditelberg
Joshua L. Ditelberg
Joshua L. Ditelberg is a Partner at Seyfarth Shaw LLP in Chicago, where he focuses his practice on labor and employment and transactions. He is a Fellow of the College of Labor and Employment Lawyers and the American Bar Foundation, and he is Vice President and Past President of the Chicago Chapter of the Labor and Employment Relations Association. Mr. Ditelberg received his BA summa cum laude from the University of Pennsylvania, his MA from the University of Pennsylvania, and his JD magna cum laude from the University of Michigan Law School.
- Kenneth R. Dolin
Kenneth R. Dolin
Kenneth R. Dolin is a Partner at Seyfarth Shaw LLP in Chicago, where he concentrates in labor relations and employment law. He is a member of The College of Labor and Employment Lawyers, and he has authored several pieces on labor law, including for The National Law Journal. Mr. Dolin received his BA with honors from the University of Wisconsin, his JD with honors from the University of Illinois College of Law, his MiLR Fellowship from Cornell University ILR School, and his LLM from the New York University School of Law.
- Ronald J. Kramer
Ronald J. Kramer
Ronald J. Kramer is a Partner at Seyfarth Shaw LLP in Chicago, 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 served as President of the Howard Area Community Center Board of Directors. Mr. Kramer received his BA from Michigan State University magna cum laude and his JD with high honors from the Chicago-Kent College of Law.
- Harrison C. Kuntz
Harrison C. Kuntz
Harrison C. Kuntz is a senior associate at Seyfarth Shaw LLP in Chicago, where he concentrates his practice in traditional labor law. He is the Management-Side Cochair of the ABA Committee on NLRB Practice & Procedure, Region 14, and a former field examiner with the NLRB, Regions 31 and 32 (2009 – 2014). He has been recognized by Best Lawyers of America’s Ones to Watch for Labor and Employment Law — Management (2021 – 2024, 2026) and Litigation — Labor and Employment (2021 – 2024, 2026). Mr. Kuntz received his BS from Cornell University, his MPP from the University of California at Los Angeles, and his JD from the Washington University School of Law.
- Sarah Magill
Sarah Magill
Sarah Magill is an associate at Seyfarth Shaw LLP in Chicago, where she concentrates her practice in employee benefits. She received her LLM with honors and her JD from the University of Illinois Chicago School of Law, where she served as an associate justice for the Moot Court Board.
- 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 Labor and Employment Sections of both the Illinois State and American Bar Associations. He has been named one of the Best Lawyers in America from 2021 to 2025. He received his BS with Bronze Tablet (highest honors) from the University of Illinois Urbana-Champaign and his JD cum laude from Harvard Law School.
- James M. Sullivan
James M. Sullivan
James M. Sullivan is a Partner at Seyfarth Shaw in New York City, where he focuses his practice on corporate restructuring and commercial disputes. He received his BA magna cum laude from Boston College and his JD from the Georgetown University Law Center.
Labor and Employment Issues in Transactions, Business Restructuring, and Workforce Reductions 2026 Edition
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