Employee Benefits and ERISA

Employer-sponsored benefits programs are crucial to attract, motivate, and retain employees and can serve to assist in maintaining continuity in a workforce.

In addition to changing demographics, an increasingly mobile workforce, workplace disruptions, and cost pressures, these programs can be further complicated due to consistent changes in the law and related guidance, including with regard to tax laws, the Employee Retirement Income Security Act (ERISA), and various market conditions. To maintain compliant programs that provide value to employees, it is important to stay abreast of many levels of changes impacting employee benefits programs.

At Epstein Becker Green (EBG), our Employee Benefits and ERISA lawyers know every facet of employee benefits law, including the design, structure, implementation, administration, and termination of all types of retirement, executive compensation, and health and welfare benefit plans. Foreign and domestic clients, including taxable and tax-exempt entities from many industries, count on us to help them comply with the state and federal requirements governing employee benefits and compensation arrangements. In the corporate transaction setting, we guide our clients through many employee benefits and compensation issues as they transition employees and terminate or merge plans.  We collaborate with human resources (HR) departments, in-house counsel, and other benefits professionals to achieve sound, cost-effective results through a responsive approach that puts our clients’ business goals first.  When legal disputes or government actions arise, our ERISA and employee benefits litigators can resolve the matter quickly and efficiently so that our clients can get back to business.

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Recognizing that rules and regulations for plan design, funding, and compensation keep changing, we stay in constant contact with our clients, interpreting regulatory shifts and delivering practical, easy-to-understand solutions. Our Employee Benefits and ERISA lawyers not only provide outstanding support to clients on current issues as they arise, but also stay ahead of the curve on a variety of significant issues.

Our Services

We provide comprehensive legal services relating to all types of employee benefit programs, including:

Retirement Plans

Our Employee Benefits and ERISA lawyers:

• Counsel clients regarding the structure, implementation, administration, amendment, and termination of all types of retirement plans—such as 401(k), defined benefit (including cash balance, hybrid, and pension), profit sharing, money purchase, and cross-tested and target benefit plans, as well as employee stock ownership plans (ESOPs). Our work ranges from preparing plan documents, trust agreements, Internal Revenue Service (IRS) filings, and summary plan descriptions to rendering advice on related ERISA, tax, and securities law matters
• Advise clients in connection with service provider conversions and the review of service agreements, discrimination testing, and related planning opportunities 
• Provide full operational support and work to ensure that our clients’ retirement plans stay in compliance with ERISA statutory requirements, the Internal Revenue Code (IRC), and other federal and state requirements, including about late deposits, excise taxes, and corrections
• Conduct compliance audits and handle submissions under the IRS's Employee Plans Compliance Resolution System and the Voluntary Fiduciary Correction Program of the U.S. Department of Labor (DOL)

Health and Welfare Benefit Plans

Our Employee Benefits and ERISA lawyers:

• Advise clients on Affordable Care Act, tax, and ERISA issues relating to the establishment and administration of welfare benefit plans—e.g., group health, cafeteria plans, voluntary employees’ beneficiary associations (VEBAs), severance plans, health and disability plans, on-site medical clinics, and retiree benefits plans
• Counsel clients on all aspects of Consolidated Omnibus Budget Reconciliation Act (COBRA) administration, and advise on the application of requirements under the Health Insurance Portability and Accountability Act (HIPAA), including the privacy rules, health-status discrimination, and special enrollment rules
• Draft plan documents (including “wrap plans”), provide advice on the structuring of welfare benefit plans and their administration, and consult on the termination of welfare benefit plans and the reduction of welfare benefits
• Counsel clients regarding compliance with wellness programs
• Advise clients on compliance with the Mental Health Parity and Addiction Equity Act requirements and issues with regard to substance abuse benefits
• Provide clients with legal assistance on claims reviews and DOL audits of health plans
• Guide clients through the requirements for the establishment of association health plans and direct contracting for their health programs
• Assist employers with compliance of their telemedicine service offerings

Non-Qualified Deferred Compensation Plans

Clients turn to our Employee Benefits and ERISA lawyers to:

• Design, draft, and implement deferred compensation plans, including supplemental and excess plans, long-term incentive plans, and broad-based stock purchase plans, such as IRC Section 423 plans, and plans utilizing stock options (whether nonqualified or incentive stock options) and other types of equity awards for the compensation package
• Provide advice with respect to the ERISA and tax law aspects of non-qualified plans, including the issues that arise under IRC Sections 409A and 457, as well as alternative methods of "securing" the employer's commitments under the plan or agreement (e.g., using a grantor or "rabbi" trust)
• Counsel employers through the correction methods for nonqualified deferred compensation plans

Multiemployer Plans

In the area of multiemployer plans, our Employee Benefits and ERISA lawyers:

• Give advice regarding the obligations of multiemployer plan fiduciaries on plan administration, permitted and prohibited transactions, investment selections, government registrations, agreements with service providers, plan communications, and tax-related matters, among other things
• Provide “withdrawal liability” counseling and work with actuaries on liability reduction

Also, we have extensive experience handling the following:

Benefits Communications

Client requests for assistance with the preparation or review of employee or plan participant communications can arise in many contexts. We are well equipped to address those requests as they arise. In addition, our Employee Benefits and ERISA lawyers:

• Advise clients on how to effectively communicate benefits issues to their employees and plan participants
• Counsel clients on meeting their obligations to provide accurate summary plan descriptions, prepare required notices under ERISA and/or the IRC
• Craft responses to individual participant inquiries regarding rights under a particular plan
• Prepare required notices to participants in connection with certain submissions to government agencies (this includes the requirements for using electronic means for adequate disclosure)
• Assist in developing comprehensive communication programs that relate specifically to a client’s 401(k) plans

ERISA Fiduciary Matters

Our Employee Benefits and ERISA lawyers:

• Guide employers, Benefits Committees, investment managers and advisors, trustees, and other plan service providers through ERISA’s fiduciary requirements and applicable DOL regulations to help minimize the risk of liability
• Provide advice on prohibited transaction and prudence questions, advise on the allocation of fiduciary responsibilities, consult on a wide variety of pension investment questions, assist clients with the establishment of governance best practices (including Committee Charters, Investment Policy Statements, and Benefits Tech Policies), conduct training, and advise on fiduciary responsibilities
• Attend fiduciary committee meetings, when called upon, to provide counsel to the committee on issues as they arise
• Draft and review agreements that allow a plan sponsor to appoint an investment manager as an ERISA 3(38) fiduciary who has discretion, authority, and control over plan assets

Mergers/Acquisitions/Downsizing/Restructuring

Employee benefits are a critical, yet often overlooked, aspect of corporate restructuring. Potential mergers, acquisitions, joint ventures, and divestitures can be jeopardized by the improper handling of employee benefits liabilities. To help clients avoid these pitfalls, our Employee Benefits and ERISA lawyers:

• Analyze and negotiate the pension, welfare, and executive compensation aspects of those transactions, correct any benefit plan-related problems or liabilities, and counsel on the consolidation and rationalization of benefit plans after a transaction is completed
• Design severance and early retirement programs when an employer needs to "down" or "right" size to ease the transition, and provide counseling on compliance with all relevant federal and state laws
• Assist plan sponsors with analyzing the impact of restructuring on their employee benefit plans and addressing approaches for the consolidation of plans or the adoption of new plans

Pension Benefit Guaranty Corporation Matters

Our Employee Benefits and ERISA lawyers advise on Pension Benefit Guaranty Corporation (PBGC) matters, including plan terminations, liability of controlled group members for pension plan funding deficiencies, and multiemployer plan withdrawals. In addition, we help our clients avoid PBGC, IRS, and DOL actions through document reviews, self-audits, and other customized compliance programs.

Our Multidisciplinary Approach

In addition to the preceding, our Employee Benefits and ERISA attorneys are able to bring a multidisciplinary approach to employee benefits matters by working in conjunction with EBG’s employment and labor, health care, litigation, data privacy, tax, and corporate attorneys, as needs arise. For example, we:

• Work with EBG health care attorneys on HIPAA privacy/security policies
• Structure benefit plans to comply with the Service Contract Act with our employment and government contracting attorneys
• Address HR and benefits technology data privacy/security issues with our data privacy team, and conduct security risk assessments
• Advise on direct contracting and association health plans with our health care attorneys
• Draft and review employment and separation agreements and design strategic workplace programs with our employment attorneys
• Work with EBG’s labor attorneys in collective bargaining situations to review benefits issues in negotiations and renewals
• Guide employers through preventative measures in conjunction with our ERISA litigators
• Provide employee benefits advice in the context of corporate transactions with our corporate and tax attorneys

Moreover, through our various industry-specific service teams, we can also provide insightful benefits and compensation advice on particular issues affecting those industries.

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Past Events

We are pleased to offer For Your Benefit, an on-demand audiocast series on diverse topics from our Employee Benefits practice and Employer Group Health Plans team. Keep up to date with the latest trends in benefits, ERISA, compensation, and employer-sponsored plans, or obtain an overview of an important topic addressing your programs.

In each 10–15-minute episode, members of our team will spotlight certain issues or topics employers should be aware of. This on-demand series should be of interest to all employers that sponsor benefits and compensation programs.

Episode 1: Understanding Machine-Readable Files

Recorded on June 7, 2022, this audiocast features Epstein Becker Green attorneys discussing key questions with our guest, health economist Steve Parente, to uncover what insurance companies, employer-sponsored plan administrators, and employers need to know about the July 1, 2022, deadline for publishing machine-readable files.

Learn More | Access the Recording