Ogletree Deakins understands that corporate acquisitions and restructurings can be complex and challenging. Clients need a business partner that can help them structure the labor and employment aspects of a transaction in a way that will provide transparent information on the costs of compliance with applicable laws and regulations at every stage of the deal. Our attorneys have assisted clients of all sizes across a wide range of industries, including private equity, technology, manufacturing, retail, hospitality, financial services, and more.
Our capabilities extend far beyond U.S. borders. In today’s global economy, many corporate transactions involve employees in more than one jurisdiction. Members of our International Practice Group have years of experience helping companies in all aspects of their global transactions. Our attorneys provide a unique integrated service that recognizes the material issues and business drivers of a transaction, as well as the practical considerations in getting a deal done while complying with the nuances of local laws. Our team is led by former in-house lawyers with extensive experience in corporate development who not only understand the employment law issues in divestitures, asset purchases, stock transactions, and mergers but who also have multidisciplinary experience that adds strategic value to the entire transaction.
Because our approach is different, we often handle the employment law aspects of transactions in partnership with general practice firms. As employment law practitioners, we understand the sensitive issues that arise during a transaction, and we advise our clients in a manner conducive to building rapport between the parties to a transaction. When the deal is over, the buyer and its new employees must begin a productive relationship, and we understand that the way a transaction is negotiated by outside counsel must not undermine our clients’ ability to move forward. Our advice is tailored to each client’s situation, providing a strategic approach to accomplishing the client’s business objectives while also aiming to avoid potential business disruptions and promote a smooth transition.
Our multidisciplinary teams and U.S. and international offices regularly counsel businesses around the world with respect to:
Typical labor and employment issues arising during mergers and acquisitions, including:
- Identifying the actual costs of successor employment relationships arising from contracts, collective bargaining agreements, and local laws, as well as advising on a strategic approach to new employment terms for onboarding employees
- Integrating existing employee benefits plans, analyzing the impact of benefits continuation issues if plans are extinguished, and advising on how to avoid triggering unplanned obligations
- Reviewing a target company’s existing employment agreements, change of control provisions, and acceleration of vesting of equity or profit interests, as well as advising on how to structure the transaction or negotiate deal terms in a manner that minimizes impact
- Evaluating bankruptcy issues and their impact on the rights and liabilities of employees, the target company, and the purchaser
- Assessing the possibility of upstream liability under the Worker Adjustment and Retraining Notification (WARN) Act
- Considering reduction-in-force, disparate impact, and disparate treatment/discrimination issues
- Analyzing the purchaser’s ability to enforce existing non-compete and intellectual property agreements signed by the target company’s employees
- Gauging successor issues based on potential employment law claims or violations (e.g., harassment claims and wage and hour issues) about which the purchaser is aware or which were discovered during due diligence.
- Reviewing the target company’s existing employment policies, practices, compensation systems, compliance with health and safety standards, and employee benefits plans to assess whether they create actual or potential liability
- Assessing immigration issues, including work authorization and status of employees that are subject to an acquisition or merger
- Determining employee rights under laws relating to the transfers of businesses and practical solutions to addressing conflicting business interests, including analyzing Transfer of Undertakings (Protection of Employment) Regulations (TUPE) obligations and other aspects of employment rights under local country laws
- Reviewing the seller entity’s compliance with global labor and employment laws applicable to the purchaser, including Foreign Corrupt Practices Act diligence, global wage and hour and workplace safety laws, privacy obligations, and discrimination and harassment laws
- Analyzing employee rights under existing global employment contracts and policies to determine whether, and to what degree, a transaction will trigger potential undisclosed costs
- Correcting global misclassified agency and contingent worker relationships for workers affected by the transaction
- Addressing the impact of a transaction on corporate officers and similar positions at a parent and any subsidiary companies throughout the group organization
- Assessing the impact of the parties’ failure to comply with global labor and employment obligations on the overall transaction price, as well as providing strategic solutions to resolve these issues
The terms of the deal, including:
- Representations and warranties specifically related to the purchaser’s obligations regarding onboarding employees, key employees, and allocating employment-related liabilities
- Indemnity provisions
- Escrow considerations
- Representation and warranty insurance protection
Post-close considerations, including:
- Assisting with the post-close integration process, including ameliorating potentially problematic areas and building positive relationships with new employees to promote transparency, build trust, and enhance productivity
- Creating new employment agreements (including non-compete provisions) and equity incentive or profit sharing plans
- Analyzing the newly-acquired company’s termination practices and determining actual severance liabilities in an efficient and manageable way
- Adopting, modifying, or creating new benefit plans, including assessing whether the newly-acquired company’s compensation and benefits practices are in line with market practice
- Implementing new policies and procedures
- Assimilating and integrating the newly acquired business to promote a smooth transition