Archives: ERISA Plan Administration

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Employee Benefit Issues to Keep You Awake at Night

Last week I made a presentation in the Omaha office of Jackson Lewis with the above title. I thought it might be helpful to outline the basic points of my presentation.  The following items should keep you awake at night unless you can comfortably answer them: Does your employer have ERISA fiduciary insurance? If you … Continue Reading

Pension Plan Suffers Cybersecurity Attack, ERISA Advisory Council Offers Cybersecurity Recommendations to DOL

It has been reported that infamous bank robber, Slick Willie Sutton, once said, “I rob banks because that’s where the money is.” Data thieves, understandably, have a similar strategy – go where the data is. The retail industry knows this as it has been a popular target for payment card data. The healthcare and certain … Continue Reading

“Off the Rails:” A Plan Administrator’s Burden

When an ERISA plan provides the plan administrator with discretion to interpret the terms of the plan, the administrator’s claims and appeals decisions are generally reviewed by courts under a lenient standard of review such as “abuse of discretion.” In such cases, courts generally will not upset the plan administrator’s decision absent a clear error. … Continue Reading

Will Your Forfeiture Account Disqualify Your 401(k) Plan?

In the last six months, several clients called me regarding substantial balances in a so-called “forfeiture account” in their 401(k) plans.  A few of these clients have forfeiture accounts that violate the ERISA requirements.  It is imperative that forfeitures be handled properly since both the IRS and the Department of Labor (DOL) on audit generally … Continue Reading

Supreme Court: ERISA Plan Cannot Recover Settlement Funds That Have Been Spent

The U.S. Supreme Court has narrowed, ever so slightly, the ever-changing definition of “appropriate equitable relief” under ERISA Section 502(a)(3). In Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan,[1] the high court addressed whether a plan fiduciary can recover medical payments made on behalf of a participant when the plan … Continue Reading

ERISA Claims Procedures For Disability Benefits To Get An ACA Make Over

The Employee Benefits Security Administration (EBSA) of the Federal Department of Labor plans to publish on November 18, 2015, new claims procedures for adjudicating disability benefits designed to enhance existing procedures for those benefits under Section 503 of the Employee Retirement Income Security Act (ERISA). EBSA’s goal is to apply to disability benefits many of … Continue Reading

Are Employee Life Insurance Benefit Plans Worth the Risk of Litigation After CIGNA Corp. v. Amara?

Five years ago, Chief Justice Roberts observed: “People make mistakes. Even administrators of ERISA plans.” Conkright v. Frommert, 559 U.S. 506, 509 (2010). Four years ago, searching for a mechanism to provide monetary relief for such mistakes under ERISA, the Supreme Court reached into the desiccated maw of early 19th century trust law and pulled … Continue Reading

THE RETROACTIVE AMENDMENT FIX FOR PLAN OPERATIONAL FAILURES

Frequently a plan sponsor’s operational failure to follow the terms of its 401(k) or other qualified plan can be corrected under the IRS’s Employee Plans Compliance Resolution System (“EPCRS”) (described at http://www.irs.gov/Retirement-Plans/EPCRS-Overview) with a retroactive amendment instead of a sometimes expensive financial correction. This possibility should not be surprising, given that the maintenance of qualified … Continue Reading

When a Deferred Compensation Plan Qualifies for “Top-Hat” Plan Status under ERISA

In a recent decision, Tolbert v. RBC Capital Markets Corp., _________ (S.D. Texas April 28, 2015), the district court wrestled with the question of how to determine whether a deferred compensation plan was a “top-hat” plan exempt from many of the substantive requirements of the Employee Retirement Income Security Act (“ERISA”). The Fifth Circuit previously … Continue Reading

401(k) Plan Investment Committee Best Practices After Tibble v. Edison

On May 18, 2015, the United States Supreme Court, in a unanimous decision, held that an ERISA fiduciary responsible for the selection of ERISA plan investment choices has an ongoing duty to monitor such choices. As discussed in greater detail in our May 18th Benefits Law Advisor post, Tibble v. Edison International, No. 13-550 (U.S. … Continue Reading

Tibble v. Edison International

Today, the U.S. Supreme Court announced a much-anticipated ERISA plan decision in the case of Tibble v. Edison International. ERISA practitioners and plan administrators have been watching Tibble with interest because the Supreme Court granted certiorari to consider a very broad question – namely, whether ERISA’s six-year limitations period barred imprudent investment claims where the … Continue Reading

Seven Critical Tips for Employers to Minimize ERISA Fiduciary Risk

As I perform plan fiduciary governance audits, I am surprised at the continued failure of employers to take fairly simple steps that would substantially minimize employers’ fiduciary risk. Therefore, I thought it would be helpful to employers to set forth seven critical tips that employers can take to reduce potential fiduciary exposure. Tip 1: Separate … Continue Reading

EEOC Publishes Proposed Wellness Program Regulations

Today the Equal Employment Opportunity Commission (EEOC) published long-awaited proposed regulations on wellness programs (Proposed Regs) that are intended to harmonize certain provisions of the Americans with Disabilities Act (ADA) with long-standing rules concerning wellness programs applicable to group health plans under the Health Insurance Portability and Accountability Act (HIPAA), and more recently, the Affordable … Continue Reading

Failure to Provide Individualized Post-Termination Notice of Life Insurance Conversion Rights Does Not Give Rise to an ERISA Breach of Fiduciary Duty Claim: Prouty v. The Hartford Life & Acc. Ins. Co.

In Prouty v. The Hartford Life & Acc. Ins. Co. & C&S Wholesale Grocers Inc., 997 F. Supp. 2d 85, 88 (D. Mass. 2014), the plaintiff asserted an ERISA claim against her former employer and the issuer of her employer’s group life insurance plan, claiming that both breached their fiduciary duties by failing to provide … Continue Reading

As Employers Await Wellness Program Regulations From The EEOC, Congress Has Acted

We reported in December 2014, that the Equal Employment Opportunity Commission (EEOC) said it was planning to issue proposed regulations (scheduled for February 2015) that would “promot[e] consistency between the ADA and HIPAA, as amended by the ACA,” and “clarify[] that employers who offer wellness programs are free to adopt a certain type of inducement … Continue Reading

HPID Requirement Delayed by HHS

The scramble for group health plan administrators to navigate the Centers for Medicare & Medicaid Services (CMS) website and obtain a Health Plan Identifier (HPID) ahead of next week’s deadline is over.  On October 31, 2014, the CMS Office of e-Health Standards and Services (OESS), the division of the Department of Health & Human Services … Continue Reading

EEOC Challenges the Design of Another Employer’s Wellness Program under the ADA

Little more than a month ago, we reported to you about the U.S. Equal Employment Opportunity Commission’s (EEOC’s) first lawsuit against a Wisconsin employer concerning its wellness program. On October 1, the EEOC announced a second lawsuit against another Wisconsin employer. EEOC v. Flambeau, Inc. (W.D.WI, filed October 1, 2014). Based on the report, the agency’s … Continue Reading

Employers – Review Your Controlled Group to Assure ACA and Retirement Plan Compliance

Beginning in 2015, certain employers that fail to offer affordable health insurance that provides minimum value to their full-time employees and their dependents may incur substantial Employer Shared Responsibility penalties under the Affordable Care Act (“ACA”).  We previously wrote about the importance of properly classifying workers as employees or independent contractors to assure ACA compliance.  … Continue Reading

IRS GUIDANCE: EMPLOYEE INCOME TAX CORRECTION FOR SAME-SEX SPOUSAL HEALTH COVERAGE AFTER UNITED STATES V. WINDSOR

  On June 27, 2014, the IRS released Information Letter 2014-0012, which contains guidance for employees who have had the value of same-sex spousal coverage under employer health plans — which until recently was required to be included in gross income — reported on their Forms W-2. BACKGROUND Historically, the employer cost of opposite-sex spousal … Continue Reading

Wellness Program Update: EEOC is Planning to Issue Proposed Regulations to Address ADA, GINA Issues

In May, the Equal Employment Opportunity Commission (EEOC) announced that it intends to issue proposed regulations addressing health plan-based wellness programs. According to the EEOC’s announcement, the guidance is expected to address the following items: Does title I of the Americans with Disabilities Act (ADA) allow employers to offer financial inducements and/or impose financial penalties as part of … Continue Reading

Remember ERISA Basics: SPD and Eligibility

During the past 14+ years practicing employee benefits law, I’ve seen many changes, not the least of which has been the Affordable Care Act (ACA). However, with all of the recent changes flowing from the ACA, it is important not to forget some very basic and long-standing aspects of plan compliance, design, drafting and administration, … Continue Reading

DOL Proposes Changes to Model Notices and Procedures

The Department of Labor (DOL) has published proposed regulations containing amendments to the COBRA notice provisions.  The amendments are intended to align the model general and election notices with the Affordable Care Act provisions already in effect and to ensure that the DOL will have flexibility to modify the model notices going forward. The proposed … Continue Reading

Relief from August 30th Deadline for Fee Disclosures

The Department of Labor is allowing defined contribution retirement plan administrators to reset the timing for annual fee disclosures to participants (see our earlier blog post reminding readers of the disclosure requirement and contemplating possible relief).  DOL has issued Field Assistance Bulletin 2013-02 announcing the temporary enforcement policy. The participant-level fee disclosure regulation, implemented last year, … Continue Reading
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