Thursday, February 6, 2020

Labor issues when you acquire a company with a union

Spotify recently announced that it is acquiring The Ringer, one of the most prolific and popular podcasting networks. Spotify also indicated that it intends to hire all of The Ringers’ 90 employees, most of whom work on, which covers sports and culture and which Spotify indicates it will keep up and running.

Last summer, 66 of those 90 employees signed union-authorization cards stating their support for the Writers Guild of America East to represent them as their collective bargaining representative. Shortly thereafter, The Ringer management voluntarily recognized the Guild as the union representative for its employees.

What does this mean for Spotify? Is it acquiring a labor union as part of its purchase of The Ringer? Like most legal questions, the answer depends on a number of factors.
The primary question relates to the structure of the deal itself. Is it a stock purchase or an asset purchase?

If it’s a stock purchase—the buyer is acquiring all of the stock of the seller—this issue is much easier to solve. In a stock purchase, the buyer stands in the place of the seller, and becomes responsible for all of the seller’s obligations, including its union-related obligations and any existing collective bargaining agreements. In other words, if Spotify purchased all of the stock of The Ringer, then Spotify is almost certainly acquiring its union and related obligations.

The fact that Spotify said that it intends to hire all of The Ringer’s employees, however, makes me think this deal is an asset purchase and not a stock purchase. And in an asset purchase, these issues are much more complex.

In an asset deal, the buyer assumes some, but not necessarily all, of the seller’s union-related obligations, but only if the buyer is a “successor employer.” A buyer is deemed to be a successor employer when it continues the predecessor’s business and hires a majority of its employees from the predecessor’s union employees. A successor-buyer must recognize and bargain with the union, but it does not necessarily adopt the predecessor’s collective bargaining agreement. Instead, the buyer is usually free to set its own initial terms and conditions of employment before bargaining in good faith to a new collective bargaining agreement (as long as the buyer does not mislead employees into believing they will be re-hired without changes to their terms and conditions of employment, which will lock the buyer into the old agreement).

What I hope you take away from today’s post is the complexity of these issues. If you are involved in the sale or purchase of a business that has unionized employees, you absolutely need to involve labor counsel in the deal so that the parties understand what union-related rights are being bought and sold.