并购交易中常见的就业问题——可能侵蚀交易价值的潜在劳动力风险

Hidden Workforce Risks That Can Erode Deal Value US – March 2026 Introduction In most mergers and acquisitions (M&A), employment issues are rarely the headline drivers of valuation. Buyers tend to focuson revenue growth, intellectual property, market share and operational synergies. Yet in many transactions, workforce-related Over more than two decades of partnering with corporate deal teams on transactions and employment diligence,I have advised on the employment issues that are unavoidably present in almost every deal. Fortunately, my corporate partnersinvolve their employment colleagues from the inception of the deal, or at least at the start of due diligence. In fast-moving When employment diligence is scoped properly and employment counsel brought in early, many of these issues can beidentified and mitigated. When it is not, they often surface shortly after closing, sometimes with costly consequences. Below are some of the bigger employment-related risks that investors and acquirers frequently underestimate during Hidden Wage and Hour ExposureEmbedded in Payroll Systems Restrictive Covenants That Turn Out To Be One issue that frequently arises in transactions involvesassumptions about the enforceability of executive Another issue that frequently surfaces during employmentdiligence involves wage and hour compliance, particularly in Buyers often assume that key executives are bound byenforceable noncompete, confidentiality and non-solicitationagreements. However, the enforceability of these agreements In one transaction I worked on, the target company appearedto have relatively routine payroll practices. However, when weconducted a deeper review of payroll data and compensation In one post-closing matter I worked on, a prominent NewYork corporate firm handled the deal documentation, buttheir employment counsel had clearly not been involved in Specifically, the company’s payroll system was failing toproperly incorporate certain incentive compensation into the Because the issue was embedded in the payroll systemconfiguration itself, the error had gone unnoticed internallyfor several years. Once the payroll data was analyzed, it Shortly after the transaction closed, several senior executivesleft the company and quickly launched a competing business.When the buyer attempted to enforce the noncompeteagreements, it became clear that the agreements wereunlikely to be enforceable under the governing state law Based on preliminary modeling, the potential class actionexposure for unpaid overtime alone approached US$1 Importantly, this issue was not obvious from high-leveldiligence materials. It required reviewing payroll recordsand understanding how the payroll system was actually As a result, the buyer had limited practical ability to preventkey executives from competing directly with the businessonly weeks after closing, an outcome that significantlyundermined the value of the acquisition. Had employment Independent Contractor Misclassification However, a closer analysis revealed that the seller wasplanning to terminate a large number of employees that didnot receive offers from the buyer three days after closing.In the draft asset purchase agreement, the buyer had nocontractual obligation to hire enough of those employeesto avoid a WARN Act trigger, which meant that the WARN In another acquisition involving a services-based business,the buyer initially viewed the target’s reliance on independent However, a closer review of the contractor relationshipsrevealed that many workers were functioning in roles The workers performed core operational functions, the companycontrolled scheduling and work methods and many contractors Because the issue was identified during the diligence anddrafting phase, the parties were able to address it through Under several applicable state law tests (e.g., the ABC test),these factors created a meaningful risk that the workers couldbe deemed employees rather than independent contractors.If that occurred, the company could have faced exposure Without that review, the WARN implications could haveemerged only after closing, creating huge potential liability Conclusion Because the issue was identified during diligence, the buyerwas able to plan for remediation and structure the transactionaccordingly. Without that review, the company could have For investors and acquirers, these examples illustrate abroader point: many employment-related risks are not visible Instead, they often require deeper analysis of payrollpractices, workforce classifications, executive agreements, Unresolved Employee Complaints Not all employment risks appear in contracts or payroll records. When these issues are identified early, buyers can addressthem through transaction structuring, indemnities, pricingadjustments or remediation plans. When they are discovered In another transaction involving a fast-growing operatingcompany, diligence revealed that several internal complaints A