Operating a 401(k) plan becomes more complex every year as the IRS issues more rules and plan service providers offer more features and electronic processes. Our employee benefits lawyers advise employers every day on compliance obligations while helping them evaluate the advantages and risks of adopting new or different plan features, such as auto-enrollment, safe harbor plan designs and default investment approaches. We have form plan documents, administrative forms, as well as individually designed plans. We also review plan documents prepared by vendors to help clients avoid costly mistakes, and where necessary, work with clients to self-correct retirement plan errors through the IRS’s Employee Plans Compliance Resolution System (EPCRS), including Voluntary Correction Program (VCP) filings.

Our attorneys have assisted numerous employers in analyzing their eligibility requirements, premiums charged to employees and other plan design features to avoid “pay or play” penalties and otherwise comply with the Affordable Care Act and other requirements. We advise employers on compliance obligations under COBRA and HIPPA as well as other tax, Form 5500 reporting, nondiscrimination rules, and employee disclosure requirements for health and other types of welfare plans, such as life and disability coverage and the other plan types listed below. We also handle service agreements for plans of all types, helping employers understand and carefully negotiate vendor services agreements to avoid disruptive and costly litigation.

• Health Reimbursement Arrangements (HRAs) and Health Savings Accounts (HSAs)
• High deductible plans
• Dependent care programs
• Medical flexible spending accounts (FSAs)
• Section 125 cafeteria plans
• Self-insured and insured health and other welfare plans and trusts
• Life insurance plans
• Short and long-term disability plans
• Severance pay plans
• Tuition assistance plans
• Adoption assistance plans
• Transit, parking and commuter benefits
• Vacation pay programs
• Multiple Employer Welfare Arrangements (MEWAs) and Association Health Plans (AHPs)
• Voluntary Employees Beneficiary Associations (VEBAs)

Our employee benefits lawyers provide practical legal advice regarding employee and executive compensation and incentive programs. We help clients design and implement compensation arrangements, including short-term and long-term executive compensation plans and equity compensation programs such as restricted stock or phantom equity programs, which enable employers to reward and retain top-performing executives.

Like other types of plans, there are an increasing number of compliance obligations for the executive plans of certain employers in certain industries. We strive to achieve our clients’ business objectives while minimizing the risks associated with securities regulation and reporting, insurance law, tax rules and ERISA.

Whether we’re advising a large public company or a small family-owned business, we are uniquely qualified to handle the challenges of management incentives and succession planning — with an eye toward minimizing each client’s legal and tax exposure.

Common executive compensation structures include:

• Individual Incentive Packages
• Equity Compensation Plans
• Deferred Compensation Arrangements and Supplemental Retirement Plans
• Employment Contracts
• Bonus Plans
• Life Insurance Arrangements
• Succession Planning
• Change in Control Agreements
• Public and Other Regulated Industry Compliance and Reporting

Our attorneys represent ESOP companies, trustees or selling shareholders in connection with ESOP transactions and litigation. We also serve as ongoing counsel for numerous companies that are wholly or partly owned by an ESOP, assisting with governance, compliance and financial issues that arise.

An ESOP is a tax-exempt, qualified employee benefit plan designed to invest primarily in employer securities; as the company contributes to the ESOP, ESOP participants build an equity stake in their employer. Because it is a qualified retirement plan, an ESOP provides a company-wide benefit.  Tax incentives for ESOPs have transformed ESOPs into potential financing vehicles capable of generating significant economic benefits for corporations and shareholders, and these incentives have made them useful as an acquisition vehicle.

We help businesses study whether an ESOP is feasible and desirable. Our team generally takes the role of “quarterback” in the ESOP transaction, and we have proudly assisted in “making millionaires” by seeing ESOP companies we represent start, grow and then successfully sell a business to a larger enterprise — allowing a number of long-term employees to have more diverse and secure jobs as well as a healthy retirement account balance.

Our team focuses on helping clients navigate the unique and often complex design and compliance issues surrounding defined benefit plans. From advising on the adoption of a new plan to the termination of a mature plan and anything in between, we are skilled at creating the necessary documents and structure to enhance protections for both decision-makers and their employees. We assist with cash balance plans, freezing pension plans, correction of administrative errors, Qualified Domestic Relations Orders, Pension Benefit Guarantee Corporation (PBGC) filings and audits, as well as IRS and DOL audits, and all aspects of plan documentation and required disclosures to participants.

Our attorneys also understand the specialized planning procedures involved in mid-sized and large pension annuitizations structured as terminations and “lift outs,” where retiree liabilities of an ongoing plan are transferred to insurance companies. Additionally, we advise clients on complex rules governing multi-employer (union/collectively bargained) pension plans. For these plans, we review withdrawal liability assessments for accuracy, help clients evaluate risk, request needed plan information, and track important deadlines for responding to any withdrawal liability assessment.

We have the honor of working with a great number of clients that are tax-exempt nonprofit employers and that, in many respects, have the same employee benefit plans and employee benefit compliance issues as their for-profit counterparts. But nonprofit employers have priorities and challenges that are uniquely their own, and some of the plan types and tax rules are unique to nonprofit employers. Our attorneys are always on hand to answer questions and address issues relating to 403(b) plans, 457(b) plans, 457(f) plans and compliance obligations under the Internal Revenue Code and ERISA. We draw on our deep knowledge of employee benefits law to help social-sector clients understand their legal requirements and work diligently to resolve issues in a prompt, efficient manner.

From the passage of the Affordable Care Act (ACA), and throughout the many legal and congressional challenges and modifications to the law, our employee benefits team has been a go-to source for employers navigating complex legal requirements under the ACA. We counsel clients on everything from health plan design and compliance, to fees, deadlines and IRS reporting requirements, to issues concerning periods of coverage and common terms of staffing agreements. Our team is committed to keeping clients informed of any changes to their legal requirements while providing prompt and practical solutions to address challenges unique to their industry.

We advise employers on required compliance for wellness programs, on-site clinics and other approaches to reducing overall health care costs, as well as on other laws and regulations that apply to health and welfare plans, including:

• Health Insurance Portability and Accountability Act (HIPAA) Nondiscrimination Rules, including the final wellness regulations issued on those rules
• HIPAA Privacy Rules for self-funded health plans
• EEOC guidance and regulations (particularly those on wellness)
• Genetic Information Nondiscrimination Act (GINA) Rules
• Family and Medical Leave Act (FMLA) Rules
• Employee Retirement Income Security Act (ERISA) requirements, including Form 5500 reporting
• Title VII Nondiscrimination on age, disability and/or gender

In a business climate where plan sponsors must pay close attention to complex fiduciary duties and prohibited transaction rules, we help employers implement disciplined compliance solutions to minimize the risk of fiduciary liability. Among other things, we advise on the payment of plan expenses from plan assets, review fee arrangements with plan vendors, defend clients in IRS and Department of Labor audits, and prepare investment policy statements to help plan fiduciaries use a consistent process to monitor plan funds or investments.

New participant disclosure rules, service provider fee disclosure rules, and court decisions on required monitoring of plan investment funds make it critical for employers to understand their obligations and vendor contracts. Our benefits team is armed with both the technical understanding and business sense to properly balance our clients’ legal requirements with the realities of their business environment. Working with plan fiduciaries, we go to great lengths to ensure they have the steps and processes in place to not only do the right thing “when nobody’s watching” but also to prove it, if need be.

Our employee benefits team has extensive experience helping employers find and correct all types of errors using the IRS and DOL correction programs. We also regularly work with clients to evaluate and improve their plan design and administrative processes to avoid new errors in the future. In the event an employer’s plan is audited and errors are discovered, we prepare them for the auditing process, provide documents and communicate with agents. Our wealth of experience guiding clients through such audits allows us to effectively negotiate corrections for any errors while helping clients take appropriate remedial action.

Our employee benefits team counsels clients with self-funded health plans subject to the privacy and security rules under the Health Insurance Portability and Accountability Act (HIPAA). We assist with federal and state privacy compliance issues and concerns, helping them establish procedures to maintain compliance and minimize the risk of penalties.

We also assist employers in investigating a possible breach of “protected health information” (PHI) and in evaluating which notices are required to affected groups, to the U.S. Department of Health and Human Services (HHS), and to the media. Lastly, we provide policies and forms and facilitate training for employees on policies and procedures necessary for complying with HIPPA privacy laws.

We provide informed guidance on all aspects of executive compensation programs, including fiduciary duties and prohibited transactions under the Employee Retirement Income Security Act (ERISA). We also represent Fortune 500 insurers, health care providers, self-insured employers and third-party claims administrators in ERISA litigation, from simple disability benefit defenses to complex class actions.

Because ERISA litigation is a unique area requiring in-depth knowledge of ERISA law and the nuances of ERISA litigation, our experience is a major differentiator. We have a proven track record of successfully defending ERISA discrimination claims and cases involving spousal and beneficiary rights, breach of fiduciary duty, severance and early retirement benefits, plan termination and benefit cutbacks, withdrawal liability, and delinquent contributions.

In addition, we frequently resolve ERISA claims on preemptive grounds and through pre-trial motions to dismiss, which prevent plaintiffs from conducting expensive and harassing discovery while minimizing the likelihood of injunctive relief.