Common use of Employees; Independent Contractors Clause in Contracts

Employees; Independent Contractors. (a) Schedule 3.16(a) sets forth a true, correct and complete list of all current employees, managers, and officers of the Seller (collectively, the “Employees”) showing each of their names, the identity of their employer, job titles, exemption classification under the Fair Labor Standards Act of 1938, as amended (“FLSA”), status (full-time or part-time, active or inactive), current annual compensation, bonuses, commissions, deferred or contingent compensation, pension, accrued and unused vacation and other paid leave, sick and paid time off, paid or payable (in cash or otherwise). Except as set forth in Schedule 3.16(a), the employment or term of service of all Employees is terminable at will, which means that their employment can be terminated at any time, with or without notice, for any reason or no reason at all without penalty or severance. (b) Schedule 3.16(b) sets forth a true and correct list of all independent contractors (collectively, “Independent Contractors”) that are presently engaged by the Seller and an indication of which, if any, of such Independent Contractors cannot be terminated on thirty (30) days’ notice or less or at any time, without Liability other than fees, costs and remuneration accrued through the effective time of termination. (c) To the Knowledge of the Seller, within the past one (1) year, no Employee or Independent Contractor has been in violation in any material respect of any employment contract, non-disclosure agreement, non-competition agreement or restrictive covenant to a former employer relating to the right of any such Person to be employed or retained by the Seller because of the nature of the business conducted by the Seller. To the Knowledge of the Seller, within the past one (1) year, no Employee, former employee or Independent Contractor has been in violation in any material respect of any enforceable employment contract, nondisclosure agreement, non-competition agreement or restrictive covenant in respect of an agreement or Contract between the Seller, on the one hand, and that Employee, former employee or Independent Contractor, on the other hand. (d) The Seller is compliant in all material respects with the Immigration and Nationality Act, the Immigration Reform and Control Act of 1986, and other applicable Laws regarding work authorization and the employment of individuals who are not citizens of the United States, all as amended from time to time (collectively the “Immigration Laws”). To the Knowledge of the Seller, each Employee who is a resident alien and who works the Seller has obtained all required documentation to permit such Employee to work for the Seller under the Immigration Laws. To the Knowledge of the Seller, the Seller does not employ any Employee who is not authorized to work in the United States under the Immigration Laws. There are no pending or, to the Knowledge of the Seller, threatened investigations, audits, claims or proceedings relating in any way to compliance by the Seller with respect to the Immigration Laws. (i) The Seller is not party to, bound by, or subject to any collective bargaining agreement or other labor union contract covering any of the Employees, and to the Knowledge of the Seller, there exists no organizational effort presently being made or threatened by or on behalf of any labor union, work council, or other organization with respect to the Employees, and, to the Knowledge of the Seller, no such efforts have been made since January 1, 2016; (ii) the Seller has not been or is not engaged in any unfair labor practice or other unlawful wage and hour or employment practice since January 1, 2016, and there are no charges of any unfair labor practice, charge of discrimination or harassment or other unlawful wage and hour or employment practice pending against the Seller before the National Labor Relations Board, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, the United States Department of Labor or any other Governmental Authority; and (iii) since January 1, 2016, the Seller has not experienced any strikes, grievances, claims of unfair labor practices, or other collective bargaining disputes or other labor disputes or controversies and, to the Knowledge of the Seller, none of the foregoing are threatened. (f) Other than as would not have a Material Adverse Effect, the Seller is in compliance, and has complied, with the FLSA and all other applicable Laws concerning the classification of Employees and Independent Contractors and have properly classified all such persons for purposes of participation in the Employee Benefit Plans and other applicable Laws. The Seller (i) is in compliance in all material respects, and have complied in all material respects, with all Laws concerning employment, employment practices, termination of employment, terms and conditions of employment, wages and hours, duration of work, overtime, collective bargaining, employment discrimination, leaves of absence, immigration, civil rights, safety and health, workers’ compensation, pay equity and classification of employees; (ii) has withheld and reported all Taxes or other amounts required by Law or by agreement to be withheld and reported from the wages, salaries and other payments to Employees and former employees; (iii) is not liable for any arrears of wages or other compensation, or any Taxes or any penalty for failure to comply with any of the foregoing; and (iv) is not liable for any payment to any trust or other fund or to any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits for Employees and former employees (other than routine payments to be made in the normal course of business and consistent with past practice). Except as set forth on Schedule 3.16(f), there are no pending or, to the Knowledge of the Seller, threatened or reasonably anticipated Actions against the Seller under any worker’s compensation policy or long-term disability policy. (g) The Seller is in compliance with the Worker Readjustment And Notification Act, as amended (the “WARN Act”) and any applicable state laws or other applicable Laws regarding redundancies, reductions in force, mass layoffs, and plant closings, including all obligations to furnish promptly and correctly all notices required to be given thereunder in connection with any redundancy, reduction in force, mass layoff, or plant closing to affected employees, representatives, any state dislocated worker unit and local government officials, or any other Governmental Authority. No reduction in the notification period under the WARN Act is being relied upon by the Seller. (h) The Seller is in compliance in all material respects with all Health and Safety Laws and any applicable foreign, state, provincial or other applicable Laws regarding employee and workplace safety. (i) In connection with Closing, the Seller shall satisfy in cash payments to each Employee all obligations for accrued wages, bonuses, Employee Benefit Plans, independent contractor payments, accrued vacation and sick leave or similar benefits provided to such Employees.