Beyond #MeToo: M&A and Governance Considerations for the Evolving Workplace

6 Min Read By: Ally Coll, Charlotte May, Joanna Lin, Susan A. Maslow

This article discusses a Showcase CLE program that took place at the ABA Business Law Section’s Fall Meeting on September 7, 2023. All Showcase CLE programs were recorded live and will be available for on-demand credit, free for Business Law Section members.

Over the last several years, issues and trends relevant to the focus on an in-person versus remote workforce and the fate of workers in complex, multitier supply chains have changed dramatically. This session will provide an overview of recent litigation examining corporate directors’ and officers’ (D&O) duties and an overview of emerging legislation addressing workplace misconduct and human rights abuses in supply chains—and it will include a discussion of risk assessment and allocation in the context of mergers and acquisitions (“M&A”).

On September 7, a panel discussion at the American Bar Association Business Law Section Fall Meeting will consider the dramatic direct and indirect changes in the workforce over the past six years, from #MeToo to the pandemic to the “Great Resignation.” The panelists hope to explain the impact of these evolving dynamics on reactions to workplace misconduct and human rights abuses in a variety of different workplaces. The panelists, offering employment law, corporate governance, M&A, and key in-house perspectives, will explain how both the law and best practices have changed in response, and they will provide insights about what business lawyers should advise their clients to do to keep up with current employee/shareholder/stakeholder expectations, conduct appropriate due diligence in these areas, and adhere to new legal requirements.

In the wake of the #MeToo movement, the so-called “#MeToo Representation and Warranty” proliferated in M&A agreements: by 2021 more than half of deals valued over $25 million included specific language focused on sexual harassment or misconduct. The panelists will explain why, despite good intentions, common iterations of the #MeToo representations fail to adequately address the subtle and complex factors that allowed sexual misconduct to proliferate in silence at the Weinstein Company and many other workplaces for decades. The panelists will also clarify how their understanding of effective #MeToo representations has evolved over the past several years, and they will expound on what attorneys can advise their clients to do to ensure that they are adequately addressing liability risk around workplace misconduct in the context of a corporate transaction. The presentation will expand upon what due diligence best practices and emerging trends look like; how thinking has evolved on these efforts since #MeToo went viral in 2018; and what should be done in preparation before the closing of any transaction, including as part of effective integration and policy alignment.

Turning to national and global workforce investigations and high-profile inquiries into corruption, harassment, modern slavery, and other workplace issues related to human rights abuses, the program will expand upon what corporate leaders need to keep in mind as they assess risks associated with a global workforce, especially in the context of transactions. The discussion will include an explanation of the evolution of soft law, like the United Nations Guiding Principles on Business and Human Rights (“UNGPs”) and the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises (as recently amended), to hard law, which ranges from “name and shame” frameworks like the United Kingdom’s Modern Slavery Act to mandatory human rights due diligence obligations under France’s Duty of Vigilance, Germany’s Act on Corporate Due Diligence, and the European Union’s long-awaited but imminent Corporate Sustainability Due Diligence Directive.

The panelists will provide guidance on how companies can create policies—like a global code of conduct or business ethics policy—that resonate across borders and effectively address legal risks in various jurisdictions. They will also discuss new risk considerations for directors and officers in the workforce context coming out of the recent McDonald’s decisions, such as board fiduciary obligations to oversee workplace and workforce protections, and officers’ duties to monitor operations within their company-specific silo and collect data for presentation to the board. The panelists will illuminate why it so important, not just from a legal and policy standpoint, but also from a business perspective, to get this right.

The program will feature perspectives from Margaret Egan, Executive Vice President and General Counsel of Hyatt Hotels and Resorts, and Mara Davis, Associate General Counsel, Compliance & Ethics, at Zoom—two panelists who work in-house at large, multinational corporations that are active in the transactional space and operating across the globe. These experts will explain how they are dealing with the dynamics described above on a daily basis and how their respective companies have been able to maintain a cohesive workplace culture despite a growing global workforce, and in the context of hybrid work environments that make personal connection more challenging. They will provide advice on how to set the tone from the top and create a cohesive understanding of corporate culture, especially as new entities are acquired and company reach expands globally. Specifically, they will share their experiences working to create effective community and mentoring/apprenticeship opportunities in a hybrid environment and explain how these efforts dovetail with efforts to address workplace misconduct, such as adequately training investigators even in the context of remote work. Finally, they will draw upon their diverse in-house initiatives to provide examples of how to combat human trafficking, protect staff and supply chain workers from human rights abuses (including sexual harassment), and conduct due diligence in vendor procurement. They will share unique practical suggestions like implementing physical accommodations such as alarm buttons and creating an effective operational-level grievance mechanism as required by the UNGPs.

Together with Egan and Davis, the other panelists—Ally Coll, the founder and CEO of The Purple Method; Harry Jones, a shareholder at Polsinelli; and Charlotte May, a partner at Covington & Burling LLP—will thread these diverse topics together to address how to build a culture of trust and transparency and encourage employees to speak up about workplace issues, even in a remote or hybrid environment. Attendees will leave with an understanding of recent changes in the law; best practices for risk assessment and allocation in the M&A context; and practical changes in workplace investigations, like the use of e-discovery tools and effective reporting channels to ensure that employees and other workers feel safe and protected from retaliation, regardless of where they physically work.

The program will close with a reminder about the upsides of the growing global and hybrid workforce from a company culture, ethics, and business compliance standpoint. The hope is to leave attendees with practical ideas about how to create safe and empowering workplaces, for their own benefit and in order to advise clients on how to do the same.


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