American Bar Association
 
Employee Benefit Plans and Other Compensation Arrangements Group

Employee Benefit Plans and Other Compensation Arrangements Group

Who We Are

Employee benefits and compensation are critical components of the economic wealth, well-being and welfare of employees and their families. Concurrently, compensation and benefit matters also play a vital role in the ability of businesses to recruit, retain and motivate employees, to structure and execute real estate and other common business transactions and create legal risks for businesses and others involved in employee benefit plan sponsorship and administration. This group focuses on all aspects of employee benefit plans and other compensation arrangements, including issues relating to qualified plans, medical and other welfare plans and nonqualified deferred compensation plans, the fiduciary responsibilities of plan trustees, plan administrators and other plan fiduciaries, plan administration, plan transactions, plan terminations, and litigation involving this area of practice. The Group is a past Diversity Award Recipient from RPTE and has a strong committment to diversity.

The Committees in this Group are as follows:

Programs, Meetings and Events

Committee Events

November 18, 2016 Conference Call

November 18, 2016
Our group holds bi-monthly conference calls open to all interested members of the RPTE section, as well as special "Study Group" calls to discuss current/breaking issues of interest. The calls generally are held at 1:00 pm ET on the first Friday of every other odd month. Please join us!


Please join the RPTE Employee Benefit Plans and Other Compensation Arrangements Group for a conference call led by the Plan Transactions and Terminations Committee on November 18, 2016, at 1 PM (Eastern), Noon (Central), 11 AM (Mountain), and 10 AM (Pacific) for a discussion of important developments under Title IV of ERISA and PBGC Regulations. On September 20, 2016, the PBGC issued a proposed regulation to substantially expand its Missing Participants Program to cover terminating defined contribution plans and other types of plans. Separately, PBGC also has made significant changes to its Reportable Events Regulation.


Dial in number:   866-646-6488
Participant Code: 725-588-7619


The conference line will be open during the call, so please feel free to share your views and experiences. We ask that you send specific questions in advance of the call to Tara.Silver-Malyska@willistowerswatson.com.

Harold Ashner, John Paliga, and the Plan Transactions and Terminations Committee leaders will facilitate this call.


Finally, there will be "Leadership Only" call for the Employee Benefits Plans and Other Compensation Arrangements Group about 30 minutes before (12:30 PM/EDT/11:30 AM CDT/10:30 AM MDT/9:30 AM PDT) the group's "open" call on November 18, 2016. Dial-in information is provided above. If you are unable to makes the leadership portion of the call, please inform the Group Chair, Tara Silver-Malyska.

Schedule of Additional Group Conference Calls

October 28, 2016
The RPTE Employee Benefit Plans and Other Compensation Arrangements Group for a conference call led by the Nonqualified Plans Committee on October 28, 2016, at 1 PM (Eastern), Noon (Central), 11 AM (Mountain), and 10 AM (Pacific) for a discussion of the proposed 409A and 457(f) regulations. In June, the IRS issued proposed regulations under Code Section 409A in conjunction with long-awaited proposed regulations under Code Section 457(f). The Section 409A proposed regulations provide clarification and some modifications to the final regulations issued in April 2007 and December 2008. The proposed regulations provide welcome guidance on a number of deferred compensation issues that have puzzled practitioners for years, but some questions remain unanswered. This conference call will provide an overview of the proposed regulations, with additional discussion on more interesting clarifications, such as independent contractor separation from service, certain deferred compensation issues involved in mergers and acquisitions, and payments to beneficiaries upon death. Following the discussion on the Section 409A proposed regulations, the conference call will provide an overview of the Section 457(f) proposed regulations, including the applicability of 457(f) to short-term deferrals and clarification regarding the meaning of “substantial risk of forfeiture.”


Dial in number:   866-646-6488
Participant Code: 725-588-7619


This study group conference call will include a discussion of:

                -Overview of Section 409A proposed regulations
                -Analysis of independent contractor separation from service issues
                -New payment opportunities upon death of participant
-Analysis of new guidance on M&A deferred compensation issues and existing open issues
                -Overview of Section 457(f) proposed regulations

The conference line will be open during the call, so please feel free to share your views and experiences. We ask that you send specific questions in advance of the call to Tara.Silver-Malyska@willistowerswatson.com.

Courtney Vomund, Doreen Lilienfeld, Victoria Zerjav, and David Simonetti, the Nonqualified Plans Committee leaders, will facilitate this call.

Schedule of Additional Group Conference Calls

July 1, 2016 - August 31, 2017
November 18, 2016 – Plan Transactions and Terminations Committee
February 3, 2017 - Fiduciary Responsibility, Administration and Litigation Committee
March 24, 2017 – Qualified Plans Committee
May 26, 2017 – IRA and Plan Distributions Committee
July 21, 2017 – Welfare Plans Committee

EXCEPT AS NOTED, THE CALL-IN NUMBER FOR ALL CALLS IS: 1-866-646-6488 (THE PASSCODE MAY CHANGE FOR EACH CALL AND BE ANNOUNCED SEPARATELY). PARTICIPATION IN THE CONFERENCE CALL IS COMPLIMENTARY (NO CHARGE) FOR RPTE MEMBERS


The calls during 2015-2016 are summarized below.

July 22, 2016
The conference call was led by the Welfare Benefits Plan Committee on July 22, 2016, at 1 PM (Eastern), Noon (Central), 11 AM Mountain and 10 (Pacific). We discussed the final Equal Employment Opportunity Commission (EEOC) regulations on ADA and GINA compliance for wellness programs. On May 16, 2016, the EEOC issued final rules to that describe how Title I of the Americans with Disabilities Act (ADA) and Title II of the Genetic Information Nondiscrimination Act (GINA) apply to wellness programs offered by employers that request health information from employees and their spouses. These rules provide guidance to employers and employees about how workplace wellness programs can comply with the ADA and GINA consistent with provisions governing wellness programs in the Health Insurance Portability and Accountability ACT (HIPAA), as amended by the Affordable Care Act (ACA).

This study group conference call will include a discussion of:

-incentives in health-contingent wellness programs that ask disability-related questions and/or require medical exams under a wellness program
-inducements tied to requests for a spouse's health information as part of an HRA or medical exams under a wellness program.
-required notices by employers for an employee participating in a wellness program explaining what medical information will be obtained, how the information will be used, who will receive the information, and the restrictions on its disclosure, and the methods the employer uses to prevent improper disclosure of medical information.

The conference line will be open during the call, so please feel free to share your views and experiences. We ask that you send specific questions in advance of the call to Tara.Silver-Malyska@willistowerswatson.com.

Elizabeth Ysla Leight, Allison Marquardt-Moody, David Simonetti, and Kevin Wiggins, the Welfare Benefit Plans Committee leaders, will facilitate this call.

May 20, 2016

The Nonqualified Plans Committee discussed profits interests. Sophisticated private-company management teams are increasingly asking that their equity compensation be structured to minimize ordinary income tax treatment and maximize capital gains treatment. Many private companies are turning to profits interests as a preferred equity compensation vehicle to accomplish these tax goals. This conference call will examine profits interests as a vehicle to provide equity compensation in relation to other types of equity compensation.

This study group conference call will include a discussion of:

                -traditional forms of equity compensation
                -typical management concerns regarding these traditional forms of equity compensation
                -how profits interests work and their tax treatment
                -the advantages of profits interests over other forms of equity compensation
                -potential pitfalls for the unwary

Panelists were: Courtney Vomund, Doreen Lilienfeld, and Victoria Zerjav.


September 11, 2015

The IRA/Plan Distributions Committee led the iscussion of Qualified Domestic Relations Orders After Death and Other Topics of Interest As Described Below.

The Second Circuit recently held that two posthumous, retroactive domestic relations orders constituted valid qualified domestic relations orders (QDROs). The state court issued the orders to the deceased participant’s former spouse and made them retroactive to the earlier divorce settlement date, in part, due to the participant’s refusal to comply with the terms of that prior settlement agreement. The surviving spouse did not succeed to the participant’s benefits upon the participant’s death.

This opinion brings attention to the importance of alerting participants about the potential consequences of QDROs, requiring timely beneficiary designations, and confirming/realigning participant expectations regarding the tax consequences of various types of IRA and qualified plan distributions.

This teleconference will discuss:

•       Department of Labor Regulations section 2530.206 (time and order of issuance of domestic relations orders);

•       Yale-New Haven Hospital v. Nicholls, 788 F.3d 79 (2d Cir. 2015);

•       Best practices for qualified plan beneficiary designations;

•       IRA prohibited transactions under Code sections 408(e)(2) and 4975;

•       Net unrealized appreciation (NUA) rules, under Code section 402(e)(4), for plan distributions consisting of employer securities;

•       IRA minimum required distributions;

•       Hardship withdrawal and loan processing; and

•       IRS Notice 2015-49 (Use of Lump Sum Payments to Replace Lifetime Income Being Received by Retirees Under Defined Benefit Pension Plans).

Panelists: Marc Purintun, Christina Crockett, and Henry Talavera, the IRAs and Plan Distributions Committee leaders, will facilitate the call.


Qualified Plans Committee on July 10, 2015 at 1 PM (Eastern), Noon (Central), 11 AM (Mountain), and 10 AM (Pacific) led the discussion of the Future of the IRS Determination Letter Program. The IRS recently issued Rev. Proc. 2015-36, opening the pre-approved plan program for opinion and advisory letters on Employee Stock Ownership Plans and defined benefit plans with cash balance features. The IRS was anticipated to issue a notice outlining the proposed reduction in the individually designed plan determination letter program, and requesting public comments.
This teleconference included a discussion of:

•       The determination letter program modification proposal.
•       General problems for individually designed qualified plans and their participants.
•       Particular problem areas, such as multiemployer plans, government and church plans, for which there is no pre-approved plan program.
•       The need for exceptions, delayed effective dates, and relief from section 411(d)(6) or other rules that make it difficult for some plans to fit within a preapproved plan format.
•       Ideas for salvaging at least part of the current determination letter program.
•       The role of benefits attorneys in a post-determination letter world.

The call was led by Karen Suhre, Tom Farnam and Bonita Hatchett of the Qualified Plans Committee.


The Nonqualified Deferred Compensation Committee led the discussion of Section 409A defects and possible corrections.

The final regulations under Section 409A of the Internal Revenue Code (“Section 409A”) were effective January 1, 2009. More than five years later, practitioners continue to struggle with differing interpretations of the regulations, finding Section 409A violations in many different places, and determining the most appropriate method to correct these violations. This teleconference included a discussion of the following issues.

●          Common Section 409A pitfalls based on our collective experiences in the trenches
●          How Section 409A errors come to light, including self-reporting obligations
●             Addressing Section 409A errors in corporate transactions
●          Advantages and disadvantages of possible strategies for responding to common Section 409A errors, including:
            ○          The Internal Revenue Service Section 409A correction program
                ○             The proposed Section 409A income inclusion regulations for amounts that are subject to a substantial risk of forfeiture
            ○          Taking the position that Section 409A does not apply because there is no “legally binding right” or the “short term deferral exemption” applies or prior to the occurrence of a “substantial risk of forfeiture”
            ○          Use of common law theories, including the rescission doctrine or the “Couch-Russel” doctrine
●          Experiences with Internal Revenue Service audits

Our call was led by Stephanie Schroepfer, Doreen Lilienfield and Courtney M. Vomund; Nonqualified Deferred Compensation Committee Chair and Co-Vice Chairs.

 
Section Events

    Diagnosing GST Trusts

    01/17/2017-01/17/2017

    Your client has a GST exempt trust. How do you know it really is GST exempt? How do you confirm the trust's inclusion ratio? And what are your options if you discover potential issues or past errors or taxable events? Join us for a practical look at how to diagnose an existing GST exempt

    Debt Markets — Dead, Delayed or Dynamic?: I Got Money, Lots of Money....

    01/18/2017-01/18/2017

    · Explore the current trends and differences between CMBS, portfolio and PE financing · Examine underwriting issues and trends in loan spreads, loan-to-cost, loan-to-value and other loan metrics · Discuss hot topics in the ever-changing debt markets and the impact of recent regulatory developments ...

    Negotiating Commercial Loan Documents – How to Get What You Really Need

    03/08/2017-03/08/2017

    The panelists will discuss legal issues, negotiation strategies and practice tips in loan document negotiation for the commercial real estate projects. Topics will include: Negotiating the Term Sheet Negotiation of due diligence items Key negotiating points in loan documents ...

LISTSERV Communication

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RPTE-EMPLOYEE@mail.americanbar.org

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Leadership

Chair:

Silver-Malyska, Tara

Council Representative:

Talavera, Henry

Vice-Chairs:

Paliga, John
Suhre, Karen

Committee Roster  

Modified by John Paliga on November 8, 2016

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