Employee Benefits and Executive Compensation

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The Employee Benefits and Executive Compensation practice group provides comprehensive services to a broad array of clients, large and small, including public and private companies, tax-exempt organizations and governmental entities. The law governing employee benefit plans and executive compensation arrangements is complex and dynamic, and our lawyers are adept at distilling the complexity into practical take-aways that our clients can easily understand and use.

Employee Benefits

We provide legal services to clients that sponsor a variety of employee benefit plans, including:

Internal Revenue Code Section 401(a) qualified retirement plans, including 401(k), profit sharing, money purchase, defined benefit, and cash balance pension plans;
Code Section 403(b) tax-sheltered annuity plans and Section 403(a) qualified annuity plans;
Code Section 457(b) eligible deferred compensation plans;
Code Section 125 cafeteria plans and health and dependent care flexible spending arrangements (FSAs);
Health and other employee welfare benefit plans, including health reimbursement arrangements (HRAs), health savings accounts (HSAs), voluntary employees’ beneficiary associations (VEBAs), adoption assistance plans and severance pay plans;
Employee stock purchase plans; and
Miscellaneous fringe benefit plans.

The legal services we provide for our clients’ employee benefit plans include:

Plan design and redesign;
Plan document drafting, review and amendment;
Drafting and reviewing required disclosures and other communications to plan participants;
Submitting plans for IRS approval, at plan inception and termination;
Identifying plan document and plan operational failures, and correcting them using the IRS’s Employee Plans Compliance Resolution System (EPCRS);
Identifying Form 5500/5500-SF filing errors or ERISA fiduciary breaches, and correcting them using the U.S. Department of Labor’s (DOL’s) Delinquent Filer Voluntary Compliance Program (DFVCP) and Voluntary Fiduciary Correction Program (VFCP);
Reviewing and negotiating third-party service provider agreements;
Counseling on the disposition of employee benefit plans in business transactions, including stock and asset sales as well as mergers, and on post-closing harmonization of employee benefit plans;
Advising on Code Section 280G issues arising in connection with changes in control, for example, employer and employee compliance with the shareholder vote exemption;
Advising in connection with audits and other compliance inquiries initiated by governmental agencies, including the IRS, DOL, the Pension Benefit Guaranty Corporation (PBGC) and the U.S. Department of Health and Human Services (HHS);
Negotiating with the IRS to reduce threatened Affordable Care Act (ACA) Employer Shared Responsibility Payments (ESRPs) under Code Section 4980H; and
Counseling on plan document and operational compliance with rules imposed by the Internal Revenue Code, ERISA, HIPAA, COBRA, the ACA and other legal mandates.

Executive Compensation

We provide legal services to clients that sponsor a variety of executive compensation arrangements, including:

Equity-based and cash-based incentive arrangements, including incentive stock options (ISOs), non-qualified stock options (NSOs), stock appreciation rights (SARs), phantom equity, restricted stock/restricted stock units, and performance awards;
Incentive compensation arrangements, including annual incentive plans, discretionary bonus plans, long-term incentive plans, spot awards, profit-sharing plans, gain-sharing plans, team/small-group incentive plans, retention bonus plans, change in control agreements, and project bonus plans;
Severance arrangements; and
Nonqualified deferred compensation plans, including salary reduction arrangements, bonus deferral plans, supplemental executive retirement plans (SERPs), excess benefit plans, top-hat plans and Code Section 457(f) ineligible plans.

The legal services we provide for our clients’ nonqualified deferred compensation arrangements include:

Plan design and redesign, plan document drafting and review;
Drafting and reviewing required disclosures and other communications to plan participants;
Counseling on federal and state (blue sky) securities registration and registration exemption requirements;
Assisting in navigating benefits and compensation-related laws and hurdles in foreign (non-U.S.) jurisdictions, and expertly facilitating joint representation efforts with foreign counsel when required;
Identifying and correcting Code Section 409A plan document and plan operational failures;
Identifying top-hat plan statement filing errors and correcting them using the DOL’s DFVCP program;
Reviewing and negotiating third-party service provider agreements;
Counseling on the disposition of executive compensation arrangements in business transactions, including stock and asset sales as well as mergers;
Analyzing and resolving Code Section 280G issues, including those involving equity compensation; and
Advising in connection with audits and other compliance inquiries initiated by governmental agencies, including the IRS, DOL, PBGC and SEC.

Description

Contact: Melanie N. Aska

Internal Revenue Code Section 401(a) qualified retirement plans, including 401(k), profit sharing, money purchase, defined benefit, and cash balance pension plans;
Code Section 403(b) tax-sheltered annuity plans and Section 403(a) qualified annuity plans;
Code Section 457(b) eligible deferred compensation plans;
Code Section 125 cafeteria plans and health and dependent care flexible spending arrangements (FSAs);
Health and other employee welfare benefit plans, including health reimbursement arrangements (HRAs), health savings accounts (HSAs), voluntary employees’ beneficiary associations (VEBAs), adoption assistance plans and severance pay plans;
Employee stock purchase plans; and
Miscellaneous fringe benefit plans.

The legal services we provide for our clients’ employee benefit plans include:

Plan design and redesign;
Plan document drafting, review and amendment;
Drafting and reviewing required disclosures and other communications to plan participants;
Submitting plans for IRS approval, at plan inception and termination;
Identifying plan document and plan operational failures, and correcting them using the IRS’s Employee Plans Compliance Resolution System (EPCRS);
Identifying Form 5500/5500-SF filing errors or ERISA fiduciary breaches, and correcting them using the U.S. Department of Labor’s (DOL’s) Delinquent Filer Voluntary Compliance Program (DFVCP) and Voluntary Fiduciary Correction Program (VFCP);
Reviewing and negotiating third-party service provider agreements;
Counseling on the disposition of employee benefit plans in business transactions, including stock and asset sales as well as mergers, and on post-closing harmonization of employee benefit plans;
Advising on Code Section 280G issues arising in connection with changes in control, for example, employer and employee compliance with the shareholder vote exemption;
Advising in connection with audits and other compliance inquiries initiated by governmental agencies, including the IRS, DOL, the Pension Benefit Guaranty Corporation (PBGC) and the U.S. Department of Health and Human Services (HHS);
Negotiating with the IRS to reduce threatened Affordable Care Act (ACA) Employer Shared Responsibility Payments (ESRPs) under Code Section 4980H; and
Counseling on plan document and operational compliance with rules imposed by the Internal Revenue Code, ERISA, HIPAA, COBRA, the ACA and other legal mandates.

Executive Compensation

We provide legal services to clients that sponsor a variety of executive compensation arrangements, including:

Equity-based and cash-based incentive arrangements, including incentive stock options (ISOs), non-qualified stock options (NSOs), stock appreciation rights (SARs), phantom equity, restricted stock/restricted stock units, and performance awards;
Incentive compensation arrangements, including annual incentive plans, discretionary bonus plans, long-term incentive plans, spot awards, profit-sharing plans, gain-sharing plans, team/small-group incentive plans, retention bonus plans, change in control agreements, and project bonus plans;
Severance arrangements; and
Nonqualified deferred compensation plans, including salary reduction arrangements, bonus deferral plans, supplemental executive retirement plans (SERPs), excess benefit plans, top-hat plans and Code Section 457(f) ineligible plans.

The legal services we provide for our clients’ nonqualified deferred compensation arrangements include:

Plan design and redesign, plan document drafting and review;
Drafting and reviewing required disclosures and other communications to plan participants;
Counseling on federal and state (blue sky) securities registration and registration exemption requirements;
Assisting in navigating benefits and compensation-related laws and hurdles in foreign (non-U.S.) jurisdictions, and expertly facilitating joint representation efforts with foreign counsel when required;
Identifying and correcting Code Section 409A plan document and plan operational failures;
Identifying top-hat plan statement filing errors and correcting them using the DOL’s DFVCP program;
Reviewing and negotiating third-party service provider agreements;
Counseling on the disposition of executive compensation arrangements in business transactions, including stock and asset sales as well as mergers;
Analyzing and resolving Code Section 280G issues, including those involving equity compensation; and
Advising in connection with audits and other compliance inquiries initiated by governmental agencies, including the IRS, DOL, PBGC and SEC.

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