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Service: Employee Benefits and Executive Compensation
September 2010 Article Disclosure of Pay Versus Performance Under Dodd-Frank
Firm Authors: Michael S. Melbinger
August 6, 2010 Briefing Illinois Law Increases Penalties for Violations of Wage Payment Act
On July 30, 2010, Illinois Governor Pat Quinn signed into law a bill that increases criminal penalties for employers who illegally withhold wages and expands procedural mechanisms for mployees to pursue unpaid wages.
August 2010 Article Regulatory Update: IRS Issues Final Regulations on Diversification Requirements for Defined Contribution Plans Holding Employer Securities
Firm Authors: Julie K. Stapel
July 19, 2010 Briefing Supreme Court to Hear Several Cases Affecting Labor & Employment
The Supreme Court has accepted seven labor- and employment-related cases to be heard in the Court’s next term, which begins in October 2010. These cases touch on a wide range of labor and employment issues, and the Court’s rulings could have significant impacts on employers.
July 2010 Article Regulatory Update: Health Care Reform: What Plan Sponsors Need to Know Now
Firm Authors: Julie K. Stapel
Summer 2010 Article ERISA's Hotel California
Firm Authors: James P. Baker
June 2010 Article Regulatory Update: Department of Labor Issues Final Rules on Disclosure Requirements for Multiemployer Plans
Firm Authors: Julie K. Stapel
May 12, 2010 Briefing New Rules for Group Health Plans Providing Coverage to Children Under Age 26
The Internal Revenue Service, the Department of Labor, and the Department of Health & Human Services each published Interim Final Rules on May 10 concerning the obligation of all group health plans under the Patient Protection and the Affordable Care Act to provide dependent coverage for children who have not yet attained age 26.
May 6, 2010 Newsletter Labor News
Select events from the world of organized labor for April 2010
May 2010 Article Regulatory Update: Department of Labor Issues Proposed Regulations on the Provision of Investment Advice
Firm Authors: Julie K. Stapel
April 29, 2010 Briefing Supreme Court Holds “Class Arbitration” May Not Be Imposed Absent Explicit Agreement
Class actions tend to increase the breadth and potential exposure of litigation against corporate defendants, which creates uncertainty in the legal environment.
April 20, 2010 Briefing President Obama Signs Extension of Jobless Benefits
On April 15, 2010, President Obama signed into law H.R. 4851, the Continuing Extension Act of 2010, which temporarily extends certain unemployment and health care benefits.
Spring 2010 Article The Magic Words
Firm Authors: James P. Baker
April 2010 Article Regulatory Update: Department of Labor Issues Final Regulation on “Plan Asset” Status of Participant Contributions
Firm Authors: Julie K. Stapel
March 26, 2010 Briefing DOL Reverses Position on Mortgage Loan Officers, Creates New Type of Guidance
The U.S. Department of Labor yesterday began a new practice of issuing interpretive guidance through “Administrator’s Interpretations,” which will set forth generally applicable interpretations of laws within the Department’s jurisdiction and will not be bound by any particular set of facts.
March 2010 Article How to Address Compensation Risk in this Year’s Proxy Statement
Firm Authors: Michael S. Melbinger
March 2010 Article Regulatory Update: PBGC’s Proposed Reportable Event Changes
Firm Authors: Linda Lemel Hoseman
February 18, 2010 Article Executive Compensation and Risk: TARP Rules for Financial Institutions Trigger Broader Risk Assessment of Compensation Policies
Firm Authors: Michael S. Melbinger
February 2010 Article Regulatory Update: IRS Provides Helpful Guidance on Automatic Employee Contribution Arrangements and Contributions of Paid Time Off
Firm Authors: Linda Lemel Hoseman
January 2010 Article Regulatory Update: Health Risk Assessment and Wellness Programs Affected by GINA Interim Final Regulations
Firm Authors: Linda Lemel Hoseman
December 23, 2009 Briefing COBRA Premium Subsidy Extended
President Obama recently signed into law an extension of the government subsidized COBRA premium reduction program established earlier this year by the American Recovery and Reinvestment Act of 2009.
December 2009 Article Regulatory Update: USERRA and the HEART Act
Firm Authors: Linda Lemel Hoseman
November 2, 2009 Article Keeping Up With Rev. Rul. 2008-13
Firm Authors: Michael S. Melbinger
November 2009 Article Regulatory Update: HITECH Breach Notification Regulations Under HIPPA
Firm Authors: Linda Lemel Hoseman
October 19, 2009 Briefing Reminder – Many Companies Need to Amend for 162(m) by Year End
Many companies will need to amend their employment agreements, equity plans and awards, and other incentive plans and agreements by December 31, 2009, to preserve the deductibility of performance-based awards and amounts under Code Section 162(m) [the $1 million limit on public companies’ ability to deduct compensation payments to their named executive officers] in light of Rev. Rul. 2008-13.
October 9, 2009 Briefing TALF and Non-Mortgage ABS: Formal Risk Assessment and Expansion of Credit Rating Agency Eligibility
On October 5, 2009, the Federal Reserve Board announced changes to the Term Asset-Backed Securities Loan Facility, which is maintained by the Federal Reserve Bank of New York as authorized on November 24, 2008, and is intended to aid market participants in meeting the credit needs of investors in highly rated asset-backed securities.
October 2009 Article U.S. Supreme Court to Hear Case On Executive Compensation
Firm Authors: Michael S. Melbinger
October 2009 Article Regulatory Update: Fall 2009 Health Plan Update
Firm Authors: Linda Lemel Hoseman
September 30, 2009 Article Public Companies: Conduct Risk Assessment on Compensation Plans
Firm Authors: Michael S. Melbinger
September 24, 2009 Briefing A Step-by-Step Action Plan For Conducting Executive Compensation Risk Assessments
The most important year-end 2009 task for Companies, Boards of Directors, and Compensation Committees may be to begin to establish a process for assessing the risk of the Company’s executive and employee compensation programs.
September 24, 2009 Briefing Joint Policy Committee Issues Advice Regarding Union Demands Over Payments on Unauthorized Uploads to Web Sites
Recently, the Screen Actors Guild and the American Federation of Television and Radio Artists have been demanding that advertising agencies remit payments to performers and to pension and health funds for videos that have been uploaded to video sharing Web sites, such as You Tube, without the advertising agency or producer's permission.
September 4, 2009 Briefing Illinois Employment Law Legislative Update
Illinois Governor Patrick Quinn recently signed three statutory amendments into law, each aimed at expanding the rights of workers in Illinois.
September 1, 2009 Article Regulatory Update: New Form 5500, Schedule C Reporting Requirements for 2009
Firm Authors: Linda Lemel Hoseman
September 2009 Article Secular Trusts, Distributions and Other Compensation Planning Opportunities in Anticipation of Potential Tax Increases
Firm Authors: Michael S. Melbinger
August 2009 Article Regulatory Update: New Wage Withholding Tables Under the American Recovery and Reinvestment Act of 2009 Affect Pensioners
Firm Authors: Linda Lemel Hoseman
July 2009 Article Assessing and Avoiding Risk of Adverse Tax Consequences for Partnerships Under the “Golden Parachute” Payment Rules
Firm Authors: Linda Lemel Hoseman
June 2009 Article Regulatory Update: COBRA Continuation Health Coverage Under the American Recovery and Reinvestment Act
Firm Authors: Linda Lemel Hoseman
June 19, 2009 Briefing Obama Administration Proposes Comprehensive Reform of Financial Regulation: Aligning Compensation Practices With the Interests of Shareholders and the Stability of Financial Firms and the Financial System
On June 17th, the Obama administration released its long-anticipated proposal for financial regulatory reform. The 88-page Proposal contains several items related to executive compensation, which generally track the President’s June 10 proposal to reform the executive compensation process.
May 2009 Article Recent Economic Recovery Legislation Contains Significant New Executive Compensation Requirements
Firm Authors: Linda Lemel Hoseman
May 19, 2009 Briefing Illinois Appellate Court Finds Forced Holidays Did Not Change Exempt Status Under State Wage Law
An Illinois appellate court recently ruled that a telecommunications company that cut the working time and pay of salaried employees through furlough days during holiday weeks did not forfeit the exemption for salaried professionals under the Illinois Minimum Wage Law.
May 19, 2009 Briefing Supreme Court Upholds Mandatory Arbitration of Discrimination Claims
In a decision that could have a broad impact on business and organized labor, the United States Supreme Court recently held that a collective bargaining agreement can require the arbitration of workplace discrimination claims arising under the Age Discrimination in Employment Act.
April 30, 2009 Briefing Impact of Swine Flu in the Workplace
Now that the World Health Organization has raised the swine flu (also called the 2009 H1N1 flu) pandemic alert to a Level 5 (out of 6), employers may need to take precautions to safeguard their workers’ health and to avoid possible liability issues.
April 28, 2009 Briefing Illinois Supreme Court Expands Strict Liability Standard for Workplace Sexual Harassment Committed by Supervisors
Illinois employers are strictly liable for sexual harassment committed by any supervisor, even if the supervisor does not directly supervise the employee alleging harassment, according to a 4-2 ruling by the Illinois Supreme Court.
April 17, 2009 Briefing Second Circuit Rules Debtors Must Pay Substantial Pension Termination Fees
In a recent reversal of a Bankruptcy Court decision, the U.S. Court of Appeals for the Second Circuit upheld a law which could further burden financially distressed companies attempting to reorganize and exit bankruptcy.
April 7, 2009 Briefing More COBRA Subsidy Information
On March 31, 2009, the Internal Revenue Service released its Notice 2009-27, in the form of a series of questions and answers that provide additional guidance regarding the COBRA premium reduction.
March 23, 2009 Briefing Illinois Law Restricting Participation in Federal E-Verify Program Held Invalid
Last week, the U.S. District Court for the Central District of Illinois held that Section 12(a) of the Illinois Right to Privacy in the Workplace Act violates the supremacy clause of the United States Constitution and is thus invalid. See United States v. Illinois, No. 07-3261, (C.D. Ill. March 12, 2009).
March 20, 2009 Briefing Model COBRA Notices Released; Action Required
On March 19, 2009, the Department of Labor issued the much-anticipated model notices and updated frequently asked questions for employers and employees regarding the COBRA premium subsidy that was enacted under the American Recovery and Reinvestment Act of 2009.
February 19, 2009 Briefing New Executive Compensation Limitations Under the American Recovery and Reinvestment Act
On October 3, 2008, President Bush signed into law the Emergency Economic Stabilization Act. EESA established the Troubled Assets Relief Program. On February 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act which, among other things, amended the executive compensation provisions of EESA.
January 2009 Article More Targets, No Silver Bullets: 2008 Supreme Court Cases Expand Employment Law Risk for Employers
Firm Authors: Jeffrey S. Bosley
December 17, 2008 Briefing Federal Court Holds; SAG Must Arbitrate P&W Disputes
The Joint Policy Committee of the AAAA-ANA seems to have won the final battle against the Screen Actors Guild and its Pension and Health Plans in their ongoing attempt to unilaterally determine whether the percentage allocated between covered and non-covered services in a talent agreement is appropriate.
December 2008 Article Strategies for Fiduciary Best Practices After LaRue and Glenn
Firm Authors: Michael S. Melbinger
October 17, 2008 Briefing Strategies for Fiduciary Best Practices After LaRue and Glenn
The U.S. Supreme Court handed down two landmark decisions this year affecting retirement plan fiduciary governance on a broadscale: Metropolitan Life Ins. Co. v. Glenn and LaRue v. DeWolff, Boberg & Associates, Inc. Practitioners have heralded these decisions as supporting plan participants' rights to bring successful actions against retirement plan fiduciaries. However, by reading between the lines, these cases can provide strategies to protect employers and fiduciaries, and to facilitate their proper exercise of fiduciary duties.
July 1, 2008 Article Department of Labor Issues Corrections and Guidance to Qualified Default Investment Alternatives Regulation
June 27, 2008 Briefing Arbitrator Holds Against Screen Actors Guild, Taking Away The Ability to Sue in P&W Disputes
The ANA-AAAA Joint Policy Committee on Broadcast Talent Relations recently filed an arbitration request against the Screen Actors Guild with respect to the SAG Producers Pension and Health Funds' issuance of new Multi-Service Commercial Allocation Guidelines.
June 24, 2008 Briefing Supreme Court's Final Employment Decisions
As the 2007 Term draws to a close, the Supreme Court has issued several decisions in the employment arena, offering mixed news for employers.
June 12, 2008 Briefing New York’s Highest Court Addresses Key Questions for Commissioned Sales Executives Under the Labor Law and When Commissions are Deemed to be Wages
This briefing provides a summary of Pachter v. Bernard Hodes Group, Inc., a recent decision of New York's highest court that addresses several key questions concerning commissioned sales executives.
June 3, 2008 Article New IRS Guidance on Distribution-Related Provisions of PPA
June 2008 Article 401(k) Participants May Sue for Breach of Fiduciary Duty
Firm Authors: Steve Flores, Michael S. Melbinger
May 1, 2008 Article Department of Labor Issues Guidance on Compliance for Wellness Programs and Safe Harbor for Deposit of Employee Contributions
April 11, 2008 Briefing New Jersey Senate Approves Paid Family Leave; Governor Expected to Sign
This week the New Jersey Senate gave final legislative approval to a measure (A. 873) that allows workers to take up to six weeks of paid leave to care for sick family members or for newborn or newly adopted children. New Jersey Governor Jon Corzine is expected to sign the measure, making New Jersey the third state to enact paid family leave rights, after California and Washington.
March 28, 2008 Newsletter Executive Compensation Update
Executive Compensation Update is published quarterly by CCH, a Wolters Kluwer business, and is reprinted here with permission. Winston & Strawn partner Mike Melbinger, chair of the firm's employee benefits and executive compensation practice, is editor-in-chief of this newsletter, which features a cover story written by Mr. Melbinger titled "IRS Reverses Long-Standing Position on Performance-Based Compensation Under Code Sec. 162(m)."
February 22, 2008 Article Supreme Court Holds that 401(k) Participants May Sue for Breach of Fiduciary Duty to Recover Losses in Individual Accounts
Firm Authors: Linda T. Coberly, Krista M. Enns, Steffen N. Johnson, Catherine W. Joyce, Michael S. Melbinger, Michael P. Roche, Gene C. Schaerr
February 22, 2008 Briefing Supreme Court Holds that 401(k) Participants May Sue for Breach of Fiduciary Duty to Recover Losses in Individual Accounts
In a closely watched ERISA case, the Supreme Court has clarified the right of employees to sue plan fiduciaries for mismanaging their individual 401(k) accounts.
January 24, 2008 Briefing Supreme Court Outlook Update
The United States Supreme Court recently announced that it will consider three additional cases that may impact the employer-employee relationship.
January 15, 2008 Briefing How To Comply With San Francisco’s Health Care Security Ordinance
The U.S. Court of Appeals for the Ninth Circuit recently ruled that employers are now required to comply with San Francisco's Health Care Security Ordinance.
December 19, 2007 Newsletter CCH Executive Compensation Update, Volume 3, Issue 4
Executive Compensation Update is published quarterly by CCH, a Wolters Kluwer business, and is reprinted here with permission. Winston & Strawn partner Mike Melbinger, chair of the firm's employee benefits and executive compensation practice, is editor-in-chief of this newsletter, which features a cover story written by Mr. Melbinger titled "IRS Postpones Year-End Deadline for Code Sec. 409A Changes, But Much Compliance Work Remains."
November 12, 2007 Briefing Department of Labor Issues Final Regulations on Default Investment Alternatives in Participant-Directed Individual Account Plans
This briefing addresses the information needed to comply with recently released Department of Labor regulations on "qualified default investment alternatives" which become effective on December 24, 2007.
October 15, 2007 Briefing The SEC’s Emerging Concerns with Rule 10b5-1 Plans
Rule 10b5-1 plans, which have become a popular way for officers and directors of public companies to shield themselves from insider trading liability, are coming under increasing scrutiny from the SEC.
October 2, 2007 Briefing The Supreme Court Outlook for 2007-2008
This term the United States Supreme Court will consider a number of cases that may impact employers and employees. These cases are briefly summarized.
September 19, 2007 Newsletter CCH Executive Compensation Update, Volume 3, Issue 3
Executive Compensation Update is published quarterly by CCH, a Wolters Kluwer business, and is reprinted here with permission. Winston & Strawn partner Mike Melbinger, chair of the firm's employee benefits and executive compensation practice, is editor-in-chief of this newsletter, which features a cover story written by Mr. Melbinger titled "SEC Provides Significant Guidance on Executive Compensation Proxy Disclosures."
August 2007 Article State Mandated Coverage of Non-Dependents Could Cost Employees
Firm Authors: Marion Kristal Goldberg, Linda Lemel Hoseman, Michael S. Melbinger
May 16, 2007 Briefing Ninth Circuit Decision Complicates Implementation of Mandatory Arbitration Agreements in the Workplace
On May 14, 2007, the Ninth Circuit issued its opinion in Davis v. O’Melveny & Myers, Case No. 04-56039, holding that O’Melveny’s arbitration agreement was unenforceable because it failed the two-part unconscionability test under California law.
April 27, 2007 Briefing Employment Agreements and Section 409A
Do you have employment or change in control agreements?  If so, chances are that you will need to negotiate and make amendments to those agreements by December 31, 2007, to comply with the final regulations under Code Section 409A.
April 12, 2007 Briefing IRS Releases Section 409A Regulations
April 10, 2007 Briefing Final Regulations under Section 409A Present Challenges and Opportunities
Today the IRS published its long-awaited final regulations under new Code Section 409A. The final regulations are effective April 17, 2007.
April 2007 Article Labor and Employment Law Practice - List of Articles
March 29, 2007 Briefing IRS Issues Guidance Regarding Deduction Limits under Pension Protection Act
For taxable years of plan sponsors beginning after December 31, 2005, the Pension Protection Act of 2006 modified the deductions permitted for defined benefit pension plans and the combined limit on deductions for contributions made to defined benefit plans and defined contribution plans with overlapping coverage.
March 29, 2007 Briefing Department of Labor Issues Interim Final Regulation Regarding Cross-Trading Exemption
The Pension Protection Act of 2006 modified the prohibited transaction sections of ERISA and the Internal Revenue Code, effective for transactions after August 17, 2006, to permit the purchase and sale of a security between a plan and any other benefit account managed by the same investment manager, commonly referred to as cross-trading, if certain conditions are satisfied.
March 27, 2007 Briefing Code Section 409A Announcement
The IRS is expected to publish final regulations under new Code Section 409A sometime in thenext three weeks.
March 27, 2007 Briefing Internal Revenue Service Provides Guidance on Rollover from Flexible Spending Accounts and Health Reimbursement Arrangements to Health Savings Account
In Notice 2007-22, the IRS provided guidance under the Health Opportunity Patient Empowerment Act of 2006 on rollovers from health flexible spending accounts and health reimbursement arrangement to health savings accounts.
March 27, 2007 Briefing DOL Issues Interim Final Rule Relating to the Time and Order of the Issuance of Domestic Relations Orders
One of the burdensome aspects of the administration of tax qualified plans is the treatment of domestic relations orders that are intended to be qualified domestic relations orders, or QDROs.
March 27, 2007 Briefing Unusual QDRO Case
In drafting a set of QDRO procedures, one of our objectives is to provide guidance in as many situations as possible without making the procedures into an unwielding document. As we are occasionally reminded, however, that objective is difficult to attain.
March 21, 2007 Newsletter CCH Executive Compensation Update, Volume 3, Issue 1
Executive Compensation Update is published quarterly by CCH, a Wolters Kluwer business, and is reprinted here with permission.Winston & Strawn partner Mike Melbinger, chair of the firm's employee benefits and executive compensation practice, is editor-in-chief of this newsletter, which features a cover story written by Mr. Melbinger titled "Debunking Myths Under the New SEC Disclosure Rules as We Head into the Home Stretch."
March 2007 Article Compelled Privilege Waiver: Has the McNulty Memo Changed Anything?
Firm Authors: Kevin M. King, William M. Sullivan Jr.
February 14, 2007 Briefing Internal Revenue Service to Provide Guidance on Permissible Benefits in Tax Qualified Defined Benefit Plans
In Notice 2007-14, the IRS indicated its concern that certain tax qualified benefit plans may include nontraditional benefits that are not subject to the Code's vesting protection and other tax qualification rules, such as
February 14, 2007 Briefing Department of Labor Provides Guidance on Selecting and Monitoring Investment Advisor
With the growth of participant directed individual account plans, there has been a growing recognition of the importance of providing investment advice to participants in such plans. The Pension Protection Act of 2006 (PPA) added a statutory prohibited transaction exemption relating to the provision of investment advice–ERISA Section 408(b)(14).
December 18, 2006 Briefing Internal Revenue Service Provides Transitional Guidance on Diversification Rights With Respect to Publicly Traded Employer Securities
The Pension Protection Act of 2006 amended the Internal Revenue Code and ERISA to provide that, except for certain ESOPs, a defined contribution plan must provide applicable individuals with the right to diversify the employer securities in their accounts and reinvest those amounts in certain diversified investments.
December 18, 2006 Briefing Internal Revenue Service Issues Additional Guidance Regarding Reporting and Wage Withholding under Code Section 409A
As you are doubtless aware, there was a major change in the taxation of nonqualified deferred compensation plans effected by the addition to the Code of Section 409A for years commencing on or after January 1, 2005.
December 14, 2006 Briefing The McNulty Memorandum — A Missed Opportunity for Responsible Change in Corporate Enforcement Policy
On Tuesday, December 12, 2006, Deputy Attorney General Paul McNulty released revised Department of Justice guidelines regarding federal prosecution of business organizations. The revised policies, which are embodied in an internal Department of Justice memorandum, supercede and replace earlier guidelines issued in 2003 by then-Deputy Attorney General Larry Thompson.
November 30, 2006 Briefing Internal Revenue Service Provides Guidance on Use of Smart Cards and Debit Cards under Code Section 132(f) Qualified Transportation Fringe Benefit Program
A popular perk offered by many employers is a qualified transportation fringe benefit under Code Section 132(f). A qualified transportation fringe benefit can include transportation in a commuter highway vehicle between home and work, a transit pass and qualified parking.
November 2006 Article PIMCO Defined Contribution Dialogue Interview with Marla Kreindler
Firm Authors: Marla J. Kreindler
November 2006 Article A Sensible Approach to Custom Target Retirement-Date Strategies
Firm Authors: Marla J. Kreindler
Non-Firm Authors: Stacy Schaus, PIMCO Senior Vice President
October 26, 2006 Briefing Internal Revenue Service Issues Final ESOP Regulations
Recently, the IRS issued final regulations on whether a payment in redemption of employer securities held by an ESOP is deductible.  
October 26, 2006 Briefing Department of Labor Issues Guidance with Respect to Funding Strategy for Defined Benefit Plans
In light of the new funding requirements for tax-qualified defined benefit pension plans, as well as new accounting rules, one strategy which plan sponsors are considering, is focusing upon plan liabilities, rather than upon plan assets as has historically been the focus.
October 25, 2006 Briefing Internal Revenue Service Issue Final Regulations on Use of Electronic Media for Providing Employee Benefit Notices and Making Employee Benefit Elections and Consents
Over the past decade, the IRS has issued several items of guidance relating to the use of electronic media with respect to retirement plans and individual retirement plans.
October 17, 2006 Briefing Internal Revenue Service Provides Additional Transitional Relief Under Code Section 409A
In fall of 2004, Congress amended the Internal Revenue Code to add Code Section 409A, to set forth statutorily for the first time rules governing nonqualified deferred compensation arrangements. In December 2004, the IRS issued its initial guidance in this area in Notice 2005-1.
October 4, 2006 Briefing Department of Labor Proposes Regulation On Default Investment Alternatives Under Participant Directed Individual Account Plans
The recently enacted Pension Protection Act of 2006 amended ERISA Section 404(c) to provide a safe harbor for plan fiduciaries who, in the absence of participant investment direction, invest participant accounts in default investment alternatives in accordance with regulations to be published by the Department of Labor.
September 28, 2006 Briefing Recent Rash of Litigation over 401(k) Plan Investment Fees
Like the plague of "stock drop" suits of the past several years, the plaintiffs do not seem to have much of a factual basis for their claims.
September 28, 2006 Briefing Default Investment Fund Regulations
As you may know, the Pension Protection Act of 2006, signed by the President last month, contains a very helpful provision for the protection of 401(k) and other retirement plan fiduciaries.
September 2006 Article SEC Releases Final Rules on Disclosure of Executive and Director Compensation
Firm Authors: Michael S. Melbinger
September 18, 2006 Briefing Rash of Litigation over 401(k) Plan Investment Fees Allege ERISA Violations
This week, a plaintiffs' firm filed class action lawsuits against several large companies and the fiduciaries of their 401(k) plans. The lawsuits allege that the companies, their boards of directors, officers and other plan fiduciaries violated their ERISA duties to the plan by charging (or allowing to be charged) excessive investment and administration fees.
September 18, 2006 Briefing Department of Labor Proposes Revisions to Form 5500
The Department of Labor recently established an electronic filing requirement for Form 5500, the annual information return for both tax-qualified pension plans and welfare plans for plan years beginning on or after January 1, 2008, and also proposed a number of changes to the annual filing requirement, including:
September 18, 2006 Briefing Internal Revenue Service Issues Final Regulations on Employer Comparable Contributions to Health Savings Accounts
The Medicare Prescription Drugs, Improvement and Modernization Act of 2003 modified the Internal Revenue Code to permit eligible individuals to establish health savings accounts or HSAs.
August 14, 2006 Briefing Seventh Circuit Rules IBM’s Cash Balance Plan Did Not Discriminate Against Older Workers
The U.S. Court of Appeals for the Seventh Circuit recently held that IBM’s cash balance plan did not discriminate against older workers in violation of the Employee Retirement Income Security Act of 1974 ERISA, as amended, where the terms of the plan were age-neutral.
August 4, 2006 Briefing The Pension Protection Act of 2006: Summary of Key Issues Applicable to Fiduciaries Managing Plan Assets and Sponsors of Private Investment Funds
On Thursday, August 3, 2006, the Senate passed the Pension Protection Act of 2006 in the same form as was previously adopted by the House of Representatives on July 28. The Act contains a number of legislative changes that will  impact the management of plan assets subject to The Employee Retirement Income Security Act of 1974, as amended and Section 4975 of the Internal Revenue Code of 1986, as amended.
August 2, 2006 Briefing IRS Clarifies Computation of Excise Tax for Late Deferral of Participant Contributions Under 401(k) Plan
Perhaps the most common prohibited transaction in which administrators of 401(k) plans are involved is the late transmittal of elective deferrals to the plan.
August 2, 2006 Briefing Internal Revenue Service Issues Guidance on New Excise Taxes to Which Plans May be Subject
The Tax Increase Prevention and Reconciliation Act of 2005 includes new excise taxes and disclosure rules that target potentially abusive tax shelter transactions to which a tax-qualified plan may be a party. In Notice 2006-65, the IRS published its initial guidance in this area.
August 2, 2006 Briefing Internal Revenue Service Issues Guidance on Use of Debit, Credit and Standard Value Cards to Reimburse Self-Insured Medical Reimbursement and Dependent Care Assistance Plan Participants
In Revenue Ruling 2003-43, the Internal Revenue Service addressed three situations in which employers adopting electronic reimbursement systems for participants with debit, credit or stored-value cards under health flexible spending accounts could approve claims without the need for a receipt or further review:  
August 2, 2006 Briefing Internal Revenue Service Final Regulations on Withholding on Supplemental Wage Payment
The American Jobs Creation Action of 2004 provided for mandatory income tax withholding at the highest rate of income tax in effect under the Code. (currently 35 percent) to the extent an employee’s total supplemental wages from an employer (and other businesses under common control with the employer) exceed $1,000,000 during the calendar year.
August 1, 2006 Briefing Implied Duty of Good Faith Does Not Convert Unfunded Deferred Compensation Plan to Deferred Compensation Plan
With the passage of Internal Revenue Code Section 409A, the income tax aspects of nonqualified deferred compensation plans have been closely scrutinized in recent years. A recent decision by the Court of Appeals for the Third Circuit reviews a more basic question concerning these arrangements, namely, what it means to be "unfunded."
August 1, 2006 Briefing Internal Revenue Service Provides Guidance On Revocation of Election under Code Section 83(b)
Transfers of property to a service provider are taxed under Section 83 of the Code. Oversimplifying the rules, a service provider will have an inclusion in income in an amount equal to the excess of the fair market value of the property over the amount (if any) paid for the property in the first year that the service provider’s rights in the property are transferable or not subject to a substantial risk of forfeiture.
August 1, 2006 Briefing SEC Adopts New Executive Compensation Rules
On July 26, 2006, the Securities and Exchange Commission approved changes to its rules governing disclosure of (i) executive compensation, (ii) related person transactions, director independence and other corporate governance matters, and (iii) security ownership of officers and directors.
July 25, 2006 Briefing District Court Strikes Down Maryland’s Fair Share Health Care Law as Preempted by ERISA
In a decision that may help ease the implementation or maintenanceof employee benefit plans that are uniform nationwide, a federal districtcourt for the District of Maryland struck down the Maryland Fair Share Health Care Fund Act as preempted by ERISA. Retail Indus. Leaders Assoc. v. Fielder, No. 06-316.
July 18, 2006 Briefing ERISA Section 4062(e) Liability
ERISA Section 4062 provides special rules that apply when an employer ceases operations at a facility in any location and, as a result of such cessation of operations, more than 20 percent of the total number of employees who are participants under a plan maintained and established by it are separated from employment.  This event—a Section 4062(e) event—is similar to an active participant reduction, a reportable event to the PBGC under ERISA Section 4043.
June 15, 2006 Briefing Stock Option Award Timing: A Hot Button Issue
Recently, the news media have been awash in stories regarding the alleged “backdating” of stock option grants—primarily to high-level executives—by publicly traded companies. Although the controversy has its roots in an SEC investigation dating back to 2005, the issue gained prominence following a March 18, 2006, Wall Street Journal analysis and numerous ensuing investigations by the SEC and the Department of Justice.
June 5, 2006 Briefing Supreme Court Holds ERISA Fiduciary May Sue Beneficiary For Reimbursement Under “Equitable Relief” Provision
In a unanimous decision, the U.S. Supreme Court recently held that when an injured person receives benefits from an ERISA plan but then sues a third party over the same injuries and recovers a settlement or damages, the ERISA plan fiduciary can sue for reimbursement out of that settlement or award.
February 10, 2006 Briefing 2006 SEC Proposal on Executive Compensation Disclosure
The Securities and Exchange Commission recently issued its release on Executive Compensation and Related Party Disclosure proposing wide-ranging amendments to disclosure requirements for executive compensation and providing interpretive guidance as to whatare perquisites under the current disclosure regime.
December 22, 2005 Briefing DOL Issues Final USERRA Regulations on Employers’ Rehiring Responsibilities
Employers now have further guidance on their responsibilities to returning soldiers including preserving their seniority, promotion, health care, pension, and other benefits. The Labor Department's Veterans Employment and Training Service released final rules to implement the Uniformed Services Employment and Reemployment Rights Act of 1994 on December 16. The regulations will become effective on January 18, 2006.
October 5, 2005 Briefing United States and Japan Enter Into Totalization Agreement
Employees who work for United States multinational corporations and who transfer to affiliated foreign companies may find themselves covered by the local Social Security system. For example, a United States employee sent to Japan will make contributions to Japan’s government sponsored pension system, the Employee Pension Insurance.
September 30, 2005 Newsletter IRS Releases Proposed Regulations Under Code Sec. 409A
This briefing was originally publishedin Executive Compensation Update, CCH Incorporated 2005, has been reprinted here with the publisher's permission.On September 29, 2005, the U.S.Treasury Department and the IRS finally released the long-awaited further guidance on new Code Sec. 409A. The proposed regulations expand on the initial guidance issued by the IRS last year in Notice 2005-1 and clarify many of the issues raised since the American Jobs Creation Act of 2004 added Code Sec. 409A.
September 15, 2005 Briefing Internal Revenue Service Issues Final and Proposed Regulations on Code's Anti-Cutback Rules
As part of EGTRRA, the IRS was directed to issue regulations providing that the Code’s anti-cutback provisions under Code Section 411(d)(6)(B) do not apply to any amendment that reduces or eliminates early retirement benefits or retirement-type subsidies that create significant burdens and complexities for the plan.
September 15, 2005 Briefing IRS Issues Proposed Regulations on Interaction of Code's Permitted Forfeiture Rules With Code's Anti-Cutback Rules
In August 2005, the IRS, in addition to issuing final regulations under Code Section 411(d)(6), also issued additional proposed regulations. The proposed regulations, in part, reflect the decision of the United States Supreme Court in Central Laborers Pension Fund v Heinz.
September 15, 2005 Briefing IRS Issues Revenue Procedures on Staggered Determination Letter Filings
One of the longest standing aspects of tax-qualified plans under the Internal Revenue Code is the application for a favorable determination letter. Since ERISA, however, with the large number of laws that directly affect tax-qualified plans, and the sheer increase in the number of plans intended to be tax qualified, the system had become bogged down.
July 28, 2005 Briefing Internal Revenue Services Issues Proposed Regulations for Electronic Transmission of Employee Benefit Information
The proposed regulations (which will not go into effect until they are adopted as final regulations) reflect the provisions of the Electronic Signatures in Global and National Commerce Act, commonly referred to as E-SIGN.
June 13, 2005 Briefing Claims Procedures in Top Hat Plans
Plans established by employees for a select group of management or highly compensated employees, a/k/a top hat plans, although exempt from some of ERISA’s requirements, are subject to ERISA’s claim procedures.
June 13, 2005 Briefing Sponsors of Retiree Prescription Drug Plans Not Seeking the Federal Tax Subsidy Still Subject to Requirement of MPDIMA
In December 2003, Congress enacted the Medicare Prescription Drug, Improvement and Modernization Act of 2003. MPDIMA, among other things, created a new prescription drug benefit as Part D of the Medicare program, beginning in January 2006.
May 20, 2005 Briefing IRS Extends (Modestly) the "Use It or Lose It" Rule
Under existing IRS guidance, a cafeteria plan does not include any plan that defers the receipt of compensation or operates in a manner that permits participants to use contributions for one plan year to purchase a benefit that will be provided in a subsequent plan year.
May 10, 2005 Briefing DOL Modifies Voluntary Fiduciary Correction Programs Under ERISA
In 2002, the DOL adopted the Voluntary Fiduciary Compliance Program, a program that was designed to encourage employers and plan fiduciaries to voluntarily comply with ERISA, and further to allow those persons potentially liable for fiduciary violations under Title I of ERISA to voluntarily apply for relief from enforcement actions and certain penalties, provided they satisfied the conditions of the VFCP.
May 10, 2005 Briefing IRS Provides Additional Guidance on Health Reimbursement Arrangements
In Revenue Ruling 2005-24, the IRS addressed the issue of whether amounts paid to an employee under a health reimbursement plan that provides for the payment of unused reimbursement amounts in cash or other benefits are excludable from gross income under Section 105 of the Code. The ruling addressed four situations.
May 10, 2005 Briefing No Place To Turn: Fiduciaries Potentially Liable For Eliminating Investment Option That Rebounds
Having responsibility for the selection and retention of investment funds under an ERISA employee benefit pension fund is not a task for the faint hearted. seemingly clear) language of a plan.
March 15, 2005 Briefing Should Your 401(k) Plan Allow (and Encourage) After-Tax Employee Contributors?
One of the numerous changes to the rules governing tax-qualified plans made by EGTRRA was the addition of “designated Roth contributions” under Code Section 402A. Under that Section, beginning in 2006, a plan may permit an employee who makes elective contributions under a 401(k) plan to designate some or all of those contributions as Roth contributions.
March 7, 2005 Article Treasury and IRS Issue Guidance on Deferred Compensation and New Code Section 409A
Firm Authors: Michael S. Melbinger
March 3, 2005 Briefing March 15, 2005 May Be Your Next Deadline for Deferred Compensation Plans
We want to extend one last reminderthat an important deadline under new Code Section 409A is fast approaching.By March 15, 2005, any individual who wishes to defer compensationstill payable in 2005, but who has not yet made such an election, will have a final chance to make a valid deferral election for 2005.
February 2005 Newsletter ERISA Litigation Alert
In light of the U.S. Department of Labor’s new COBRA continuation coverage notice requirements, we dedicatethe third installment of our ERISA Litigation Alert to recent cases involvingCOBRA notice issues. Additionally, it is designed to provide you with COBRAnotification compliance tips.
January 30, 2005 Briefing HHS Provides Guidance Regarding the Disclosure of Protected Health Information in Litigation Context
For many clients, compliance with the HIPAA privacy requirements on a day to day basis has not been much of an issue. They were, even prior to HIPAA, cognizant of the potentially sensitive nature of an employee’s medical history, and in fact made efforts to distance themselves from such information beyond what was required by applicable law.
January 26, 2005 Briefing DOL Proposes Easing of Prohibited Transaction Class Exemption for Interest Free Loan
The prohibited transaction provisions of ERISA generally prohibit a party in interest with respect to a plan, such as an employer sponsoring an employee benefit plan, from lending money or extending credit to a plan. However, in a frequently used prohibited transactions class exemption 80-26, the DOL allows a party in interest to make an unsecured interest free loan.
January 26, 2005 Briefing IRS, DOL, and HHS Issue Final HIPAA Portability Regulations
In recent years, the focus of HIPAA has been on the privacy and security of protected health information, but the "P" in the acronym does stand for portability. On December 30, 2004, the IRS, DOL, and HHS issued final regulations applicable for plan years beginning on or after July 1, 2005.
January 26, 2005 Briefing Internal Revenue Service Issues Internal Guidelines on Non-qualified Deferred Compensation Plans
As you are no doubt aware, major changes in the taxation of non-qualified deferred compensation arrangements were effected by the American Jobs Creation Act of 2004, which added a new Code Section 409A.
January 26, 2005 Briefing HIPAA Security Deadline Looming for Group Health Plans
With very narrow exceptions, all health plans are now required to comply with the HIPAA privacy standards and shortly many of these plans will need to address compliance with the HIPAA security standards.
January 26, 2005 Briefing Internal Revenue Service Issues Final Regulations Under Code Section 401(k) and 401(m)
Since 1994, may significant changes to Code Section 401(k) and 401(m) have been made by the Small Business Job Protection Act, the Taxpayer Relief Act of 1997, and the Economic Growth and Tax Relief Reconciliation Act of 2001. In July 2003, the IRS issued proposed regulations reflecting these statutory changes, and in late December issued final regulations.
January 25, 2005 Briefing Internal Revenue Service Issues Guidance on Automatic Rollover Provisions
One of the many changes to tax-qualified retirement plans made by EGTRRA was to require that mandatory distributions of more than $1,000 (not to exceed $5,000) from a tax-qualified plan be paid in a direct rollover to an individual retirement plan if the distributee does not make an affirmative election to have the amount paid in a direct rollover to an eligible retirement plan or to receive the distribution directly.
January 25, 2005 Briefing Internal Revenue Service Publishes List of Top Ten Issues Found in EPTA Audits
In addition to David Letterman’s daily top ten lists, at year end it is customary in many areas to publish top ten lists: the top ten sports stories, the ten best (or worst) movies of the year, the difficulty of the compilation of the latter of which was reduced by 10 percent by the release of Catwoman; the top ten New Year’s resolutions, etc.
January 25, 2005 Briefing Internal Revenue Service Issues Proposed Regulations on Supplemental Wage Withholding
The existing IRS regulations with respect to income tax withholding on supplemental wage payments were last revised in 1966.
June 2004 Article Executive Compensation: At The Crossroads?
Firm Authors: Michael S. Melbinger
March 2004 Article Executive Compensation
Firm Authors: Michael S. Melbinger
January-February, 2004 Article Consulting Agreements
Firm Authors: Michael S. Melbinger
October 2001 Article Excess Pension Plan Assets Can Be Put to Various Uses
Firm Authors: Michael S. Melbinger
Non-Firm Authors: Jean M. Hahn
September 2001 Article Cross-Testing Final Regs. Validate New Comparability Plans
Firm Authors: Michael S. Melbinger
August 27, 2001 Article Why Not a Bill of Rights for Health Plan Sponsors
Firm Authors: Michael S. Melbinger
July 2001 Article Insurance Company Demutualizations Create Tax and ERISA Issues for Employee Benefit Plans
Firm Authors: Michael S. Melbinger
Non-Firm Authors: Marianne W. Culver
October 2001 Article Overview of Employee Benefits Law
Firm Authors: Michael S. Melbinger
July 2001 Article Pack Tax Deductions Into Employee Relocation Programs
Firm Authors: Michael S. Melbinger
Non-Firm Authors: Deborah Borst Hoetger
July 2001 Article Introduction to Employee Benefits Law
Firm Authors: Michael S. Melbinger
October 1999 Article DOL Enforcement Initiative on Temporary Workers
Firm Authors: Michael S. Melbinger
September 1999 Article Checklist for Employment Security Agreements
Firm Authors: Michael S. Melbinger
January 1999 Article Medical Coverage for Adopted Children - The Omnibus Budget Reconciliation Act of 1993
Firm Authors: Michael S. Melbinger
June 1998 Article You Can Take it With You: Get the Most Out of Your Employee Benefits
Firm Authors: Michael S. Melbinger
May/June 1998 Article New Developments in Compliance for Retirement Plan Trustees
Firm Authors: Michael S. Melbinger
April 1998 Article Compliance Issues for Retirement Plan Trustees
Firm Authors: Michael S. Melbinger
July 1997 Article Administrators Face Certification, Integration, Recordkeeping Challenges Under HIPAA
Firm Authors: Michael S. Melbinger
December 1996 Article J. Geils Band Sings "Give It to Me" Too Late
Firm Authors: Michael S. Melbinger
Non-Firm Authors: Saralyn M. Ang
August 1995 Article Gaining Access to Excess Pension Assets
Firm Authors: Michael S. Melbinger
February 1995 Article Are You Acting as a Fiduciary?
Firm Authors: Michael S. Melbinger
 
 
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