Nlrb give consideration to its totality of conduct doctrine in reaching a conclusion

Procedural Requirments Freedom of Information Act Guide, May Procedural Requirements The Freedom of Information Act requires federal agencies to make their records promptly available to any person who makes a proper request for them. The subject of fees under the Act is discussed more fully and separately under Fees and Fee Waivers, below. In administering the Act's procedural requirements, agencies should strive to "carefully consider [all] FOIA requests" 2 and "handle [them] in a customer-friendly manner. Nor does the FOIA apply to a presidential transition team.

Nlrb give consideration to its totality of conduct doctrine in reaching a conclusion

To those unfamiliar with the world of bankruptcy, this may seem odd. Why reward those executives under whose watch the company went bankrupt?

The union may not be alone in this opposition. A union opposing a KEIP might consider seeking information to show that at least some of the plan participants are insiders.

Fortunately, the bankruptcy rules allow for pre-hearing discovery. To make a case that an executive is an insider, the union should seek evidence that he or she reports to top management, enjoys pay toward the top of the corporate pay scale, and either has discretion to set at least some company policy or to authorize the expenditure of non-trivial sums from the corporate treasury.

Remember that the debtor, as proponent of the plan, bears the burden of proving compliance with Section c. If the union can present some evidence suggesting an executive may be an insider, the company then has the burden of coming forward with sufficient evidence to the contrary.

Because a KERP is admittedly a tool to keep management officials on the job during the Chapter 11, the debtor must, to comply with Section c 1prove that all those covered by it are not insiders.

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Cases hold that a KEIP only passes muster as a true incentive plan if it awards bonuses to executives for performance targets that are difficult to achieve. Successfully challenging a KEIP thus often requires scrutinizing the performance metrics that would trigger bonuses, looking for evidence that an executive may stand to reap an award without extraordinary effort.

For example, a KEIP that rewards work already done can hardly be described as providing an incentive to extraordinary future performance. A KEIP proposed, say, in December would be suspect if it provided a bonus based on the company achieving a certain profit in that calendar year; most of the work to achieve that target would already have taken place.

Another possible sign that a KEIP is really a retentive, not an incentive, plan: The better interpretation of Section c 3however, holds that it requires independent judicial scrutiny, not deference to a self-interested decision by management to pay itself bonuses.

Even those courts that apply the business judgment rule under Section c 3 nonetheless ask a host of questions, including whether the proposed KEIP discriminates unfairly; whether its cost is reasonable; whether it is consistent with industry standards; and whether the debtor received independent counsel regarding it.

Nlrb give consideration to its totality of conduct doctrine in reaching a conclusion

See In re Dana Corp. A union challenging a KEIP should probe whether the company satisfied these factors. On this point, the language of now-retired bankruptcy judge Stephen Mitchell in In re U. But even where external circumstances rather than the executives are to blame, there is something inherently unseemly in the effort to insulate the executives from the financial risks all other stakeholders face in the bankruptcy process.

While unfairness goes to the heart of the matter, a union challenging a KEIP may also seek to cast doubt on its validity in other ways. For example, the proposed KEIP may aim to give bonuses similar in size to those given to management pre-bankruptcy, but companies often file bankruptcy when their industry is in financial distress.

Does the size of the proposed bonuses ignore the now depressed state of the industry?

Nlrb give consideration to its totality of conduct doctrine in reaching a conclusion

An outside financial firm may claim to have counseled the company regarding the proposed KEIP, but did it in fact just bless what management had already decided to pay itself? And is the outside firm really independent, or is it one long retained by the company for other matters? Many ultimately receive bankruptcy court approval, particularly if crafted with the help of sophisticated counsel and if the debtor, in response to objections, displays a willingness to engage in a bit of plan trimming and tucking to reduce potential legal risks.

Yet challenging a KEIP may be a battle worth fighting. These bonus plans for top management almost invariably exacerbate existing inequities within the firm, and almost inevitably demoralize the rank-and-file workforce on whose labor the debtor critically depends for a successful reorganization.Law and lawyer cartoons, written by a Harvard lawyer.

Procedural Requirements. The Freedom of Information Act requires federal agencies to make their records promptly available to any person who makes a proper request for them.

Welcome. Welcome to the bankruptcy law blog uniquely devoted to the interests of organized labor and multiemployer funds. When an employer goes bankrupt, leaving workers vulnerable, unions and their affiliated funds face a host of challenging legal issues. In its decision of Brinker caninariojana.comor Court, the California Supreme Court explained that employees must be "relieved of all duties" during their statutorily required minute meal caninariojana.com that time, however, courts have struggled to define the exact status that employees are entitled to enjoy during the shorter minute rest breaks which are also required by statute.

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