Employee Benefits and Executive Compensation

Every business knows that a happy employee is a productive employee. In today’s market, competitive benefits and compensation are critical to attracting and retaining quality employees. Employers strive to provide the best compensation, benefits and retirement packages possible, but the process of choosing and preparing benefit packages can be confusing and time-consuming.

Attorneys in our Employee Benefits and Executive Compensation practice know the ins and outs of compensation and benefit programs, including their exposure to liability as well as litigation risks. We have represented employers and fiduciaries of benefit plans in some of the largest ERISA cases across the country. We combine a multidisciplinary approach with our substantial experience handling these issues to provide clients with thoughtful insight that aligns with current market trends.

Our attorneys have a wide range of experience in all aspects of employee benefits and executive compensation arrangements, including their design and administration and, when necessary, defense against litigation. More specifically, our experience includes:

• The design and establishment of tax-qualified retirement plans: traditional defined benefit, cash balance, profit sharing, new comparability, 401(k), safe harbor 401(k), employee stock ownership plans (ESOP) and Davis-Bacon plans.
• The design and establishment of non-qualified executive retirement plans and the funding, if any, of all or a portion of their benefit obligations: supplemental executive retirement plans (SERP), excess benefit, eligible 457(b) plan, ineligible 457(f) arrangements, rabbi trusts, corporate-owned life insurance (COLI) and trust-owned life insurance (TOLI).
• Design and establishment of stock-based incentive plans: incentive stock options (ISO), non-qualified stock options, stock appreciation rights (SAR), phantom stock, restricted stock and restricted stock units (RSU), performance share and performance units, and employee stock purchase (Section 423) plans.
• Assistance in the drafting, design and implementation of insured and self-funded health plans, wrap-around welfare plans, cafeteria (Section 125) plans, severance pay plans, retention bonus plans and voluntary retirement incentive plans.
• Drafting of summary plan descriptions, prospectuses, summaries of material modification and other participant communication materials.
• Drafting of employment agreements with executives and change in control plans for senior management.
• Preparation of requests to the Internal Revenue Service (IRS) to issue a favorable determination for plans intended to qualify under Section 401(a).
• Preparation of Form S-8 registration statement filed with the Securities and Exchange Commission (SEC) registering securities offered under employee benefit plans.
• Preparation of the documents necessary to obtain the approval of the Pension Benefit Guaranty Corporation (PBGC) to terminate defined benefit pension plans.
• Advice and preparation of documents relating to the correction of failures relating to tax-qualified plans, including requests under the Voluntary Correction (VCP) and Self-Correction Programs (SCP) authorized under the IRS Employee Plans Correction Resolution System (EPCRS) and the Department of Labor’s Delinquent Filer Voluntary Compliance (DFVC) and Voluntary Fiduciary Correction Programs (VFCP).
• Guidance to administrative and investment fiduciaries of plans regarding their responsibilities and the drafting of administrative determinations and investment policies.
• Compliance reviews of qualified domestic relations orders (QDRO) and qualified medical child support orders (QMCSO).
• Assistance with Affordable Care Act (ACA), COBRA and HIPAA compliance and procedures.
• Drafting and negotiation of employee benefit representations and post-closing covenants in connection with corporate mergers and acquisitions and similar transactions.
• Drafting and negotiation of employee benefit representations, negative covenants, affirmative covenants, notice conditions and events of default in connection with corporate financings.
• Assistance in connection with governmental investigations of employee benefit plans by the IRS, PBGC and the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA).
• Notification and advice respecting changes in the laws applicable to employee benefits, executive compensation and fringe benefit arrangements.
• Assistance and advice in the day-to-day administration of retirement, health and other welfare plans.
• Advice regarding the employer’s obligations to fund single employer defined benefit pension plans, collectively bargained pension plans, multiemployer pension plans and multiple employer pension plans.
• Review and negotiation of contractual arrangements with employee benefit vendors, including record keeping contracts, administrative services contracts, trust agreements, master trust agreements, custodial agreements, investment manager agreements and investment consultant agreements.
• Defense of litigation against a wide variety of claims, both single plaintiff and class-action, including allegations of wrongful denial of benefits (ERISA Section 502(a)(1)(B) action), unlawful interference in a participant’s right to attain benefits (ERISA Section 510 action), breach of fiduciary duty (ERISA Section 502(a)(2) action), restitution, promissory estoppel and other equitable causes of action (ERISA Section 502(a)(3) action), breach of fiduciary duties in ESOPs, assessment of withdrawal liability and failure to contribute by multiemployer pension plans, COBRA violations and unlawful reduction in retiree welfare benefits.