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-relatedliabilities become some of the most significant sources of post-closing exposure. 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-movingdeals, however, employment diligence is sometimes treated as routine or administrative, or not worthy of specialist attention. Inreality, it can uncover issues that materially affect valuation, integration planning and long-term competitive positioning. 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 duringtransactions, along with lessons drawn from real deal experience. Hidden Wage and Hour ExposureEmbedded in Payroll Systems Restrictive Covenants That Turn Out To BeUnenforceable One issue that frequently arises in transactions involvesassumptions about the enforceability of executivenoncompete agreements. Another issue that frequently surfaces during employmentdiligence involves wage and hour compliance, particularly incompanies with complex payroll systems. Buyers often assume that key executives are bound byenforceable noncompete, confidentiality and non-solicitationagreements. However, the enforceability of these agreementsvaries significantly by state, and depends heavily on how theagreements were drafted and implemented. 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 compensationpractices, we discovered a systemic issue involving thecalculation of the overtime regular rate. 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 inreviewing the target company’s executive restrictive covenantagreements under the relevant state law. Specifically, the company’s payroll system was failing toproperly incorporate certain incentive compensation into theregular rate used to calculate overtime. Because the issue was embedded in the payroll systemconfiguration itself, the error had gone unnoticed internallyfor several years. Once the payroll data was analyzed, itbecame clear that the improper calculations were affecting asignificant number of employees. 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 lawdue to several structural and statutory issues. In that case,the executives worked in a “red pencil” noncompete reviewstate, where the judge can throw out the entire noncompeteif it is drafted overbroadly. Furthermore, certain executiveshad not received adequate consideration under the applicablestate law. Based on preliminary modeling, the potential class actionexposure for unpaid overtime alone approached US$1million in back wages, before considering potential statutorypenalties or attorneys’ fees. Importantly, this issue was not obvious from high-leveldiligence materials. It required reviewing payroll recordsand understanding how the payroll system was actuallyperforming its calculations. Fortunately, in that deal, our clientwas able to insert a special indemnification rider for thatliability. 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 employmentcounsel advised during the due diligence phase, the buyercould have required execution of new legally compliantexecutive noncompetes as a deal term and closing condition. 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“sale of business” exception would not appl