Employment Law Considerations

One of the primary legal considerations during restructuring involves employment law. This includes laws related to layoffs, severance, and employee rights. In the United States, for instance, the Worker Adjustment and Retraining Notification (WARN) Act requires organizations with 100 or more employees to provide 60 days' notice in advance of plant closings and mass layoffs. Failure to comply can result in penalties and liability to affected employees. In contrast, European countries often have more stringent requirements. For example, in Germany, works councils must be consulted before any layoffs can occur, and in France, employers must consider social criteria such as family situation and length of service when determining whom to lay off.

Organizations must also consider the implications of severance packages and potential claims for unfair dismissal. In jurisdictions with strong labor protections, such as many European countries, navigating these laws requires careful planning and negotiation. Consulting firms like McKinsey and Deloitte often advise on best practices for managing these processes, emphasizing the importance of clear communication, fair treatment of employees, and adherence to local laws to mitigate risks and avoid litigation.

Real-world examples of companies managing these considerations effectively include Nokia's restructuring in 2011, where the company engaged in extensive negotiations with employee representatives in multiple countries to ensure compliance with local employment laws while implementing significant layoffs as part of its strategic reorientation towards network equipment and services.

Corporate Law and Governance

Restructuring also involves significant corporate law and governance considerations. These include compliance with regulations governing corporate restructuring, mergers, and acquisitions, as well as the rights and obligations of shareholders, directors, and other stakeholders. In the United States, for instance, the Delaware General Corporation Law provides a framework for corporate restructuring, including mergers and acquisitions, which requires board approval, and in some cases, shareholder approval. Similarly, in the United Kingdom, the Companies Act 2006 sets out the legal framework for corporate governance and restructuring activities.

Organizations must ensure that their restructuring plans are in compliance with these laws and that all necessary approvals are obtained. This may involve complex negotiations with shareholders, particularly in cases where the restructuring involves significant changes to shareholder rights or the dilution of existing shares. Consulting firms like EY and PwC often provide guidance on navigating these legal requirements, emphasizing the importance of transparency, due diligence, and strategic communication with stakeholders.

An example of a company navigating these challenges is Hewlett-Packard's split into HP Inc. and Hewlett Packard Enterprise in 2015. This complex restructuring required careful legal planning and compliance with corporate law requirements, including securing approval from shareholders and meeting regulatory requirements in multiple jurisdictions.

Financial and Tax Considerations

Financial and tax considerations are also paramount during restructuring. Organizations must navigate the tax implications of restructuring activities, which can vary widely between jurisdictions. For example, in the United States, the Internal Revenue Service (IRS) has specific regulations governing the tax treatment of corporate reorganizations, including tax-free reorganizations under Section 368. In contrast, European jurisdictions may have different rules regarding the tax treatment of asset transfers and losses incurred during restructuring.

Additionally, organizations must consider the impact of restructuring on their financial statements and reporting obligations. This includes the treatment of restructuring costs, asset impairments, and any changes in the valuation of assets and liabilities. Consulting firms like KPMG and Deloitte offer expertise in navigating these complex financial and tax landscapes, advising on strategies to minimize tax liabilities and ensure compliance with financial reporting standards.

A notable example of effective financial and tax planning during restructuring is the merger of Glaxo Wellcome and SmithKline Beecham to form GlaxoSmithKline in 2000. This merger involved extensive tax planning and financial restructuring to ensure the combined entity could achieve operational efficiencies while minimizing tax liabilities across multiple jurisdictions.

Organizations undergoing restructuring must carefully navigate the legal, employment, corporate governance, financial, and tax considerations in their respective jurisdictions. The complexity of these considerations requires a strategic approach, informed by expert advice and thorough planning, to ensure compliance, minimize risk, and achieve the desired outcomes of the restructuring process.