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December 4, 2017

Employee Claims in Bankruptcy Pose Significant Liability Exposure

By Shane G. Ramsey, David M. Barnes, Jr.

The Corporate Counselor

In an article published in the December 2017 issue of ALM’s The Corporate Counselor, Nelson Mullins attorneys Shane Ramsey and David Barnes discuss why companies that file for bankruptcy need to strictly follow the laws that pertain to state and federal laws. “When a corporation determines to file for Chapter 11 protection, questions concerning the status of existing labor and employment agreements and viability of employee claims immediately arise. Indeed, there are litanies of potential pitfalls for companies that file for bankruptcy without strictly following the requirements of federal or state employment laws.

“Perhaps the most-well known among these is the Worker Adjustment and Retraining Notification Act (WARN Act), which mandates that companies pay compensation up to average earnings for no more than 60 days. This compensation is paid to replace earnings lost by prematurely terminated employees. If this liability is triggered within 180 days of the bankruptcy filing, such liability amounts to a first-tier, fourth-priority (wages) claim under section 507(a) of the Bankruptcy Code (see In re Riker Ins. Indus., Inc., and In re Cargo, Inc.). If triggered during the post-petition period, such liability is a first-tier, first-priority claim under section 507(a) of the WARN Act (see In re Hanlin Grp.).”