As England experiences a second lockdown, the UK Government has announced an extension of the Coronavirus Job Retention Scheme (also known as the furlough scheme) to protect businesses and employees as the pandemic continues to adversely impact the economy. Additionally, new regulations have come into force in England which oblige employers to ensure their employees are complying with any requirement to self-isolate.
In the midst of the COVID-19 pandemic, state and local “stay at home” orders and the resulting financial and business impact, many employers have implemented or are considering a range of workforce planning alternatives to workforce reductions, including moving to a primarily remote workforce, temporary reductions to employee hours or pay (or both), and temporary periods of continued employment without any work or pay (commonly referred to as furloughs). This article addresses some of the frequently asked questions regarding state and local wage payment and notice issues that may arise in connection with such measures.
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Last month’s decision out of the Delaware District Court in Woolery, et al. v. Matlin Patterson Global Advisers, LLC, et al. was an eye opener for private equity firms and other entities owning a controlling stake in a faltering business. Breaking from the norm, the Court refused to dismiss private equity firm MatlinPatterson Global Advisers, LLC (“MatlinPatterson”) and affiliated entities from a class action WARN Act suit alleging that the 400-plus employees of Premium Protein Products, LLC (“Premium”), a Nebraska-based meat processer and MatlinPatterson portfolio company, hadn’t received the statutorily-mandated 60 days advance notice of layoffs.
According to the plaintiffs, Premium’s performance began to decline in 2008 and, upon the downturn, the defendants became more and more involved in Premium’s day-to-day operations, including by making business strategy decisions (e.g., to enter the kosher food market), terminating Premium’s existing President, and installing a new company President. Things got bad enough that, in June 2009, the defendants decided to “furlough” all of Premium’s employees with virtually no notice and close the plant. The defendants then, in November 2009, converted the furlough to layoffs, and Premium filed for bankruptcy. According to the plaintiffs, Premium’s head of HR raised WARN Act concerns back in June, when the decision to close the plant and furlough the employees was made, and the defendants ignored the issue.
With Premium in bankruptcy, the plaintiffs, unsurprisingly, turned to MatlinPatterson and the other defendants as the targets of their WARN Act claim, asserting that they and Premium were a “single employer.” The Court then applied the Department of Labor’s five-factor balancing test, namely (1) whether the entities share common ownership, (2) whether the entities share common directors or officers, (3) the existence of de facto exercise of control by the parent over the subsidiary, (4) the existence of a unity of personnel policies emanating from a common source, and (5) the dependency of operations between the two entities. This test often favors private equity firms, and on balance it did so in Woolery too, with the Court finding that the plaintiffs had made no showing as to three of the five factors. The Court nevertheless refused to grant the defendants’ motion to dismiss, holding that the complaint alleged that the defendants had exercised de facto control over Premium and then essentially giving that factor determinative weight.
No one should be surprised by the decision given the plaintiffs’ allegations, which had to be accepted as true at the motion to dismiss stage. They presented an ugly picture of a private equity firm dictating the most critical decisions (to close plant, layoff employees) and then attempting to duck the WARN Act’s dictates. The decision is nevertheless a cautionary tale for private equity firms and at first blush it presents a catch 22: (a) do nothing and watch your investment sink or (b) get involved and risk WARN Act liability.
So what is a private equity firm, lender or majority investor to do? Obviously, the best scenario is to build in the required 60-day notice period or, if applicable, utilize WARN Act exceptions, including the “faltering company” and “unforeseen business circumstances” exceptions. Even where that’s not possible, private equity firms and other controlling investors need not take a completely hands off approach. They would, however, be best-served (at least for WARN Act purposes) to do the following:
- Provide only customary board-level oversight and allow the employer’s officers and management team to run the employer’s day-to-day operations
- Although Board oversight and input can occur, continue to work through the management team on major decisions, including layoffs and potential facility closures
- Avoid placing private equity firm or lender employees or representatives on the employer’s management team
- Have the employer’s management team execute employment contracts with the employer, not the private equity firm or lender, and have the contracts, for the most part, create obligations only to the employer
- Allow the employer to maintain its own personnel policies and practices, as well as HR oversight and function
What the courts are primarily concerned with in these cases are (a) a high degree of integration between the private equity firm or lender and the actual employer, particularly as to day-to-day operations, and (b) who the decision-maker was with regard to the employment practice giving rise to the litigation (typically the layoff or plant closure decision). Private equity firms and lenders that have refrained from this level of integration have had, and should continue to have, success in avoiding WARN Act liability and returning the focus of the WARN Act discussion to the actual employer.