By any measure, whether based on the percentage of an employer’s labor dollars devoted to employee benefits or the role benefits play in the recruitment and retention of employees, employee benefit programs are critical to a company’s business strategy. Moreover, the laws governing employee benefits have become increasingly intricate and complex. Barley Snyder has long maintained a significant commitment to its employee benefits and executive compensation practice. With the growing prominence of employee benefits concerns to employers, our capacity to serve clients in this field has continued to expand.ERISA Compliance
Our employee benefits attorneys draw upon a wealth of practical experience and technical knowledge in counseling clients in all aspects of employee benefits and ERISA compliance, including the design and implementation of retirement and welfare benefit plans; plan administration; retirement planning and taxation of plan distributions; and fiduciary law aspects of ERISA. We are sometimes engaged for discrete projects, such as to address a governmental agency inquiry or to resolve a specific compliance problem. More typically, our attorneys maintain an ongoing advisory role with clients and their benefit plans, actively participating in the design and implementation of plans, their communication, ongoing administration, and the resolution of plan-related disputes and compliance issues. We do not specialize in any particular niche or sub-specialty, as our experience and knowledge base cover the broad spectrum of compensation and employee benefits issues. In addition, several of our employee benefits attorneys have spent a material part of their legal careers in-house with large public companies, where they each had specific responsibilities for benefits and compensation legal compliance. They know first-hand the legal, organizational and budgetary challenges faced by an in-house legal department in providing needed benefits and compensation advice and assistance to human resources, payroll, accounting and treasury functions, as well as to board of director compensation committees.
Our attorneys work extensively with large and medium-sized employers, from publicly traded companies and closely held businesses to non-profits and governmental entities. We advise clients concerning all aspects of qualified retirement plans, including issues related to funding; investment policies; nondiscrimination and testing; controlled groups and affiliated service groups; plan amendments, terminations and mergers; plan loans and distributions; plans in business mergers, acquisitions and reorganizations; correction of plan administrative errors; leased and collectively bargained employees; disclosure and reporting requirements; prohibited transaction analysis and avoidance; and the responsibilities of plan fiduciaries. In representations involving tax-exempt and governmental employers, we advise plan sponsors in connection with the provision of retirement benefits to employees through various tax-favored arrangements, such as 457(b), 457(f) and 403(b) plans. Our attorneys also represent employers in federal and state court litigation arising out of the employer’s sponsorship of employee benefit plans and in labor arbitration proceedings relating to the employer’s participation in multiemployer pension and other benefit plans.
Practice group members provide services involving all manner of executive compensation arrangements and programs including, but not limited to, stock option,restricted stock, stock appreciation rights and other equity-based compensation plans; short- and long-term cash bonus plans; supplemental executive retirement plans; split dollar life insurance plans; and other forms of nonqualified deferred compensation. Our roles include drafting and amending plan documents and administrative forms, providing advice and language for proxy disclosures concerning executive compensation arrangements and rendering specific tax advice on Internal Revenue Code Sections 409A, 162(m) and 280G. We also draft, and amend as needed, executive employment, change in control and separation agreements, and have established rabbi trust funding arrangements for securing the payment of benefit obligations. Our attorneys analyze golden parachute excise tax exposure and potential non-deductibility of payments resulting from executive compensation change in control commitments, and provide solutions for mitigating or avoiding these adverse tax consequences. Along with attorneys in the firm’s corporate and SEC practices, our employee benefits lawyers have served as advisors to public company board compensation committees concerning compliance with executive compensation rules and restrictions, including applicable SEC disclosure requirements.
A sampling of benefits and executive compensation matters routinely undertaken includes:
- Drafting and amending 401(k) plans, defined benefit pension plans and other tax qualified retirement plans, and representing plan sponsors in obtaining IRS determination letters.
- Drafting and implementing nonqualified deferred compensation plans, supplemental executive retirement plans (SERPs), stock plans and other executive-only retirement arrangements, and assuring such plans’ compliance with Internal Revenue Code Section 409A.
- Drafting and designing employee stock ownership plans (ESOPs) and providing ongoing advice concerning ESOP operation.
- Assisting with plan compliance self-audits and obtaining favorable IRS closing agreements for qualified plans that experience compliance failures or defects, using the Employee Plans Compliance Resolution System (EPCRS) administered by the IRS.
- Assisting plan sponsors with ERISA reporting and disclosure obligations, including summary plan descriptions, Form 5500 annual reports, funding notices and summary annual reports, and with ERISA fiduciary liability oversight, training, management and ERISA Section 404(c) compliance.
- Designing and drafting non-retirement benefit plan documents, including health care plans, both insured and self-funded; welfare benefit plan wrap documents; and Section 125 cafeteria/flexible benefit plan documents, with particular attention to compliance with HIPAA privacy and security requirements, Internal Revenue Code Section 105(h) and Section 125 non-discrimination rules, COBRA’s benefits continuation requirements, and the ever-growing array of federal law requirements applicable to such plans.
- Advising employers sponsoring health care benefit plans concerning their obligations, and compliance alternatives, under the 2010 Patient Protection and Affordable Care Act (a/k/a Health Care Reform).
- Representing employers in federal and state court, and before the Internal Revenue Service, the U.S. Department of Labor and the Pension Benefit Guaranty Corporation, in disputes and other matters arising out of or relating to employee benefit plans they sponsor.
- Representing employers in labor arbitration proceedings relating to collectively bargained employee benefit obligations, in particular withdrawal liability and other matters arising out of multiemployer pension plan participation.
- Drafting and review of qualified domestic relations orders (QDROs) and QDRO procedures.
- Assisting plan sponsors with negotiating service and trust agreements with plan trustees, third party administrators, insurance carriers and other vendors.
- Designing and implementing voluntary early retirement programs, including evaluating the impact of tax laws and age (ADEA) discrimination laws on such programs.