Employee Benefits

The Employee Benefits practice area provides a full range of legal services for employee benefit plans, including tax, ERISA, and other laws affecting employee benefit plans. Our employee benefit clients include:

• Large, publicly-held corporations (corporations with in-house employee benefit expertise and corporations for whom we provide legal services directly to management)
• Closely-held businesses
• Tax-exempt organizations
• Church organizations
• Governmental entities

Our Employee Benefits attorneys have earned a reputation for providing creative and practical solutions to the employee benefit problems and objectives of our clients. We take a pro-active approach, keeping our clients informed of changes in the law affecting their benefit plans through newsletters and direct communication. We monitor and update existing plans to maintain compliance in the fast-changing regulatory environment.

Our practice demonstrates wide geographic capability. We are employee benefits counsel to a publicly-held pharmaceutical company headquartered in New York, a publicly-held manufacturing company headquartered in Arkansas, and a major winery headquartered in California.

We work with clients to reduce legal work and to use the most appropriate and efficient resources for each project. For many clients, we train and assist human resources personnel to administer plans with a minimum of legal input on recurring questions.

Through the coordinated efforts of the attorneys in various practice areas of the Firm, our attorneys are able to respond promptly and resolve the various legal problems that may affect employee benefit plans. Attorneys in our Labor and Employment and Employee Benefits practice areas work closely together on matters such as collectively bargained plans, employment discrimination disputes, age discrimination issues, the Americans with Disabilities Act, and the Family and Medical Leave Act.

Employee Benefits attorneys also work hand-in-hand with our Private Client Services practice area to develop innovative and sophisticated approaches to optimize the federal income and estate tax consequences of the disposition of qualified plan assets at death.

Representative Clients
We provide legal services to a diverse group of clients, both public and private, that sponsor a wide variety of employee benefit plans, ranging in size from as few as one participant to more than 50,000 participants.

Areas of Service

401(k) Plans
In addition to drafting 401(k) plans and reviewing plans drafted by others (such as prototype plan adoption agreements), we advise clients on the complex discrimination rules applicable to such plans, including the availability of safe harbor plans. We advise clients on correcting plan errors and are well-versed in the correction methods made available by the Internal Revenue Service. We also have substantial experience in assisting clients with corporate transactions involving 401(k) plans and the due diligence activities relating to such plans. We assist clients in evaluating and selecting third-party administrators for their 401(k) plans. We have obtained approval from Puerto Rican taxing authorities for client 401(k) plans for Puerto Rican employees.

403(b)/457 Plans
We draft 403(b) plans, 457(b) plans and 457(f) plans, and advise clients on compliance issues affecting these plans.

Cafeteria Plans
Recent regulations have expanded the scope of permitted election changes for cafeteria plans, as well as addressing the interrelationship of cafeteria plans with other laws such as FMLA. We keep abreast of regulatory activity and rulings in the cafeteria plan area, including new developments in the area of defined contribution health plans.

COBRA Compliance
Due to the increasing importance and complexities of health care plan regulations, we have developed particular expertise within the practice area to assist clients in complying with COBRA and other health care regulations. We prepare and review initial COBRA notices, notices following a qualifying event, and COBRA descriptions contained in plans and summary plan descriptions. We also advise clients on COBRA compliance issues.

Deferred Compensation Plans
We provide technical advice and drafting assistance for all types of deferred compensation plans, including plans for tax-exempt and governmental entities. We assist clients in establishing Rabbi trusts for such plans, and in developing plans to provide benefits in excess of those under the clients' qualified plans due to limitations on benefits in the qualified plans.

Defined Benefit Plans
We assist clients in designing sophisticated defined benefit plans, as well as in drafting plan documents and securing IRS approvals. Our documents are characterized by their relative succinctness and plain English. We look for shortcuts that comply with the complex pension rules, rather than drafting every detail of every rule into plan documents. We are also experienced in analyzing discrimination issues and the requirements for sophisticated compliance techniques, such as the separate lines of business rules.

Defined Contribution Plans
We are experienced in the design and drafting of all types of defined contribution plans, including 401(k) plans, profit sharing plans and employee stock ownership plans. We assist clients in understanding the complex discrimination laws applicable to qualified plans, including the application of the separate lines of business rules for testing compliance with plan coverage requirements. We are experienced in plan correction methods, IRS audits and determination letter requests.

Employee Stock Ownership Plans
We represent ESOPs of both large and small companies, including those used in leveraged buyouts. Our attorneys have represented owners of closely-held businesses who sold their shares to an ESOP to qualify for tax-free reinvestment of the proceeds of the sale, and we have represented management and other investors who used an ESOP as a tax advantaged method of acquiring a business. Services relating to employee stock ownership plans extend to designing and drafting leveraged ESOPs and profit sharing plans that invest in employer securities.

We team with our Tax attorneys to advise clients on tax issues such as the election of S corporation tax treatment by an ESOP company. We also work closely with the Firm's Corporate and Securities lawyers in ESOP transactions, particularly those requiring securities law registration.

ERISA Litigation
We have a strong ERISA litigation practice representing publicly traded and private companies as well as insurance companies in all types of ERISA litigation. Our attorneys have represented clients when participants and beneficiaries have asserted claims for benefits and for alleged breaches of fiduciary duty. We have represented clients who were the targets of investigations by the United States Department of Labor. We have also brought claims on behalf of ERISA plans against their fiduciaries.

Our attorneys have been at the cutting edge of ERISA litigation and some of those cases are cited frequently as precedents by courts across the country. We have litigated issues regarding the reduction of retiree medical benefits, cash balance plans and the interest rates applicable to those plans, "serious consideration" in the context of early retirement programs, whether an individual was an independent contractor or a participant in an employee benefit plan, and the limits of relief under § 502(a)(3) of ERISA. We have set precedent for removing cases to federal court under the "complete preemption" doctrine.

We have argued ERISA cases before the United States Courts of Appeals for the First, Seventh, Eighth, Ninth and Eleventh Circuits and appeared in district courts in virtually every circuit.

Executive Compensation Plans
We are experienced in the design of executive compensation plans, including plans designed to meet the requirements for exemption from the $1 million dollar deduction limit on performance-based compensation. For public companies, we work with our Corporate and Securities practice area to assure appropriate registration and compliance with insider trading rules.

Flexible Spending Account Plans
Spending accounts for health and dependent care are subject to non-discrimination requirements, as well as specific rules on the type of expenses that may be reimbursed from such accounts. We advise clients on all aspects of flexible spending account plans, including new developments in the area of defined contribution health plans.

Fringe Benefit Plans
We are skilled in the tax law requirements for fringe benefit plans, such as qualified transportation benefits, tuition reimbursement and dependent care reimbursement arrangements. We also advise clients on the applicable non-discrimination requirements for such plans.

Golden Parachute Arrangements
The excise taxes imposed on executives who receive excess parachute payments, and the non-deductibility of such payments by the corporation making the payment, can significantly affect the costs of corporate acquisitions. We assist clients in analyzing the impact of such arrangements, as well as developing potential alternative arrangements that meet the regulatory requirements for exception from the golden parachute tax consequences. We also draft executive golden parachute agreements and assist with strategies to minimize any excise taxes.

Health and Welfare Plans
The laws regulating employer health plans have been changing in recent years and are likely to change even more in the future. We have responded by developing expertise in the health care area to help clients comply with laws such as COBRA and HIPAA and to keep clients apprised of developments important to them. Services include preparation of plan documents, review and negotiation of administrative services agreements, and assistance with compliance issues. We are also well-versed in tax and other issues involved in establishing defined contribution health plans.

HIPAA Compliance
The Health Insurance Portability and Accountability Act ("HIPAA") significantly increases the legal requirements for group health plans in the areas of health care portability, non-discrimination based on health factors, and privacy of health care records. We assist clients in a variety of ways, including the review of plans for compliance with the HIPAA portability and non-discrimination rules and the establishment of appropriate documents and procedures for compliance with the privacy rules.

Mergers and Acquisitions
The employee benefits provisions in merger and acquisition transaction documents can significantly affect both the financial and employee relations aspects of a transaction. We prepare, review and negotiate employee benefit provisions, and advise clients on the consequences of benefit provisions, such as golden parachute arrangements and defined benefit plan asset transfers.

Qualified Plans
We are experienced in the design, drafting and maintenance of all types of qualified plans. We maintain "volume submitter" plans that have been pre-approved by the IRS. Such plans offer a variety of designs that will meet the needs of many small business clients. We deal directly with officials of the Department of Labor, IRS, Pension Benefit Guaranty Corporation, and other governmental entities. Such dealings are often informal, involving discussions of departmental or agency views on the applicability of laws and regulations to specific transactions, without disclosing the identity of our clients.

Retirement Plans
We are responsible for the design, drafting, and maintenance of approximately 300 qualified pension and profit sharing plans of all types, including ESOPs, 401(k) plans, and complex defined benefit plans, including cash balance and pension equity plans. We also assist clients in mergers and acquisition activities, including the negotiation and drafting of the terms of defined benefit plan spin-offs and actuarial methods for determining the share of plan assets transferred to the spun-off plan, as well as the transfer of 401(k) plan assets.

Stock Option Plans
We have designed and drafted numerous stock option, restricted stock, employee stock purchase, and other types of stock compensation plans. We are familiar with the tax and legal requirements for such plans and work closely with our Corporate and Securities practice area to ensure compliance with the securities laws.