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

Group Conference Calls

July 1, 2016 - August 31, 2017
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!


WE ARE WORKING ON THE SCHEDULE for 2016-2017. OUR FIRST CALL IS TENTATIVELY SET FOR OCTOBER, 2016. WE WILL UPDATE THIS WEB SITE ONCE THE SCHEDULE HAS BEEN SET.

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.

The Fiduciary Responsibility, Administration and Litigation Committee led the discussion of the DOL’s proposed conflict-of-interest regulations, including the expanded definition of “investment advice,” the prohibited transaction exemption for “best interest contracts.”

The proposed rule expands the areas of advice that are rendered by ERISA fiduciaries and covers most significantly investment recommendations, investment management recommendations and recommendations of parties who provide advice for a fee or manage plan assets.

There are a number of specific and important carve-outs to the new rule generally intended to address the concerns expressed by the business and financial communities as well as those expressed by a number of members of Congress.

The call was led by Chuck Thulin, Lisa Van Fleet & Lori Oliphant of that committee.

A short bullet-point topics paper will be circulated shortly before the call, and posted to the Committee’s website.

The Fiduciary Responsibility, Administration, and Litigation Committee led the discussion of fiduciary issues related to breaches of health information.
The recent data breach announcements by high profile health plan vendors and insurers present a quagmire of legal and operational challenges for health plan fiduciaries and health plans. This discussion will explore challenges for plan fiduciaries, administrators and sponsors and will include a discussion of the following issues.
•       Who is the fiduciary with responsibility over these matters
•       ERISA fiduciary duties to investigate and respond to breaches
•       Fiduciary obligations in connection with selection of vendors
•       Curtailing data leakage and breach exposure by addressing delegation rights of vendors
•       Interaction with HIPAA, IRC, and other laws
•       Breach notification and ERISA communication duties
•       Operational challenges
Our call was led by Lisa Van Fleet and Chuck Thulin, Fiduciary Responsibility, Administration, and Litigation Committee Co- Chairs, along with Cynthia Marcotte Stamer.

 
Section Events

    Section 2704 Regulations Planning – Defined Value Formula Clauses, Formula Clauses, and More

    09/27/2016-10/06/2016

    This is a package of two webinars. Using Defined Value and Formula Clauses - Section 2704 Regs Highlight Their Usefulness: September 27, 2016 Estate planners have used defined value and formula clauses for many years. Recent cases such as McCord and Wandry have provided guidance on how ...

    Lifetime QTIPs: Why Should They Be Ubiquitous in Estate Planning?

    10/04/2016-10/04/2016

    JOIN THE SECTION & SAVE! ABA Members join RPTE for $70 to save $55 on this and future RPTE teleconferences, sign up at Register online . Find upcoming programming here . You may also email Khadijah.Kellogg@americanbar.org , or call 312-988-5260. Visit www.shopaba.org to update your preferences ...

    Section 2704 Regulations – A Further Analysis and Action Steps

    10/06/2016-10/06/2016

    The section 2704 regulations were released by the Treasury Department on August 3. The approach and breadth of the regulations surprised many estate planners. Our panelists will review the proposed regulations and the implications for past, current, and future planning. Topics they will cover ...

LISTSERV Communication

In order to send a message to the listserve, send the message as an email to the address below. You must be a member of the Committee to use the listserve.

RPTE-EMPLOYEE@mail.americanbar.org

In order to access the listserve archive, please click here. Please note that you will need to create a new password, separate from your regular ABA password, in order to use this archive.


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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 September 22, 2016

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