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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] Appendix — Employment and Employee Benefits Due-Diligence Information To Be Gathered
- 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 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
- 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] 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] ADA Amendments Act of 2008
- [5.37] Title VII of the Civil Rights Act of 1964
- [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 of Mergers and Acquisitions
- 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
- Alyana J. Abellar
Alyana J. Abellar
Alyana J. Abellar is an associate at Blacha Law Office, in Naperville, and concentrates her practice on family law, immigration, and probate. Abellar is a member of the Chicago, DuPage County, and Kane County Bar Associations as well as the Women’s Bar Association of Illinois. She received her B.A. from the University of the Philippines Diliman and her J.D. magna cum laude from Michigan State University College of Law. She also has received Jurisprudence Achievement Awards for Immigration Law, Trust and Estates, Torts, and Sales and Leases.
- 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, Chicago, concentrates his practice in workers’ compensation and civil litigation. He is a chair-qualified arbitrator for the Circuit Court of Cook County Mandatory Arbitration Program, has been a faculty member at annual IICLE® workers’ compensation seminars, and is the author of the monthly workers’ compensation column for IICLE®’s FLASHPOINTS. He is a member of the Chicago and Illinois State Bar Associations. Mr. Basile received his B.S. from St. Louis University and his J.D. with distinction from the 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 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.
- 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 B.S. from Lewis University and his J.D. 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 concentrates his practice on labor and employment issues. He is Vice President and Past President of the Chicago Chapter of the Labor and Employment Relations Association, a Fellow of the American Bar Foundation, and a Fellow of the College of Labor and Employment Lawyers. Mr. Ditelberg received his B.A. summa cum laude, Phi Beta Kappa, from the University of Pennsylvania, his M.A. with honors from the University of Pennsylvania, and his J.D. magna cum laude, Order of the Coif, from the University of Michigan Law School.
- 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.
- Linda J. Haynes
Linda J. Haynes
Linda J. Haynes is a Partner at Seyfarth Shaw LLP in Chicago, where she focuses her practice on employee benefits, executive and equity compensation, and institutional investors. She received her B.S. from Purdue University and her J.D. cum laude from the Loyola University Chicago School of Law.
- Yasamin N. Kaye
Yasamin N. Kaye
Yasamin N. Kaye is an associate with Goldberg Kohn in Chicago, where she concentrates her practice in bankruptcy and creditors’ rights. She is a member of the American Bankruptcy Institute and the American Bankruptcy Association and serves on the Chicago board of the International Women’s Insolvency & Restructuring Confederation and the pro bono committee of the Bankruptcy Court for the Northern District of Illinois. She received her B.A. from the University of Michigan and her J.D. from the University of Chicago 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 at Seyfarth Shaw LLP in Chicago, representing management in labor and employment law matters. He is a member of the American and Chicago Bar Associations. He is a Past Chair of the ABA’s State and Local Government Law Section. He has spoken at numerous conferences regarding labor issues and has written for a variety of journals. Mr. Kramer received his B.A. magna cum laude from Michigan State University and his J.D. with high honors from the 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.
Labor and Employment Issues in Transactions, Business Restructuring, and Workforce Reductions 2022 Edition
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