Association Health Plans – Update

As we advised was likely during our June 29, 2019 webinar, Association Health Plans—Are They Really an Option to Consider?, at least two states were likely to challenge the enforceability of the new regulations issued by the Department of Labor that expand the definition of “employer” for groups who are qualifying association health plans (“AHP’s”).  Today, the Attorney Generals of New York, Massachusetts, California, D.C. and six other states have now sued in the D.C. Federal District Court to enjoin the implementation of the AHP Final Rule and declare it invalid primarily because it directly conflicts with the express terms of the Affordable Care Act of 2010 (“ACA”) and increases the risk of fraud and harm to consumers who will lose coverages mandated under the ACA and jeopardize states’ efforts to protect their residents through stronger regulation.

It is far too soon to predict the outcome of this litigation but at the very least this litigation effort will likely cause insurers to move cautiously in the offering of new coverage options under the AHP model until greater clarity is provided, either through the courts or through new regulation issued within these and other states who perceive these types of programs as a threat to their constituents.  We will continue to keep you updated on any developments that continue to occur in this emerging area of focus.

You’ve Discovered A Mistake in Your Plan Administration – Now What?

Occasionally qualified plan administrators discover that their plans have incurred an operational error.  The Internal Revenue Service (“IRS”) recognizes that it needs the help of plan administrators to police the administration of qualified plans and has correspondingly published guidance to help plan administrators take appropriate corrective action where necessary.

IRS Correction Alternatives

Revenue Procedure 2016-51, known as the Employee Plans Compliance Resolution System (“EPCRS”) provides guidance to plan sponsors regarding how to correct plan failures.

Self-Correct:  EPCRS provides that a plan sponsor may, paying no fee or sanction, correct certain operational plan failures in a qualified plan if the correction is substantially completed by the last day of the second plan year following the plan year in which the failure occurred and in certain other circumstances as described below.  This method is known as self-correction.

Voluntary Correction Program:  EPCRS also offers a Voluntary Correction Program (“VCP”) through which a plan sponsor, at any time before audit, may pay a fee and receive the IRS’s approval for correction of an error.  VCP requires a written application to the IRS and a filing fee of between $500 and $3,500 (depending on the assets in the plan.)  (For more information about filing fees, see Jackson Lewis’s prior blog here.  Plan administrators must determine whether that correction can be self-corrected or whether it must be included in the VCP.

  • The first step in the analysis is to determine whether the error can be self-corrected by the last day of the second plan year following the plan year in which the failure occurred.
  • Next, a plan administrator should analyze whether the error was “significant” in which case it requires a VCP.  If an error was “insignificant”, it can be self-corrected.  The factors to be considered in determining whether a failure under a plan is insignificant are set forth below.  No single factor is determinative.
    1. Whether other failures occurred during the period being examined (for this purpose, a failure is not considered to have occurred more than once merely because more than one participant is affected by the failure);
    2. The percentage of plan assets and contributions involved in the failure;
    3. The number of years the failure occurred;
    4. The number of participants affected relative to the total number of participants in the plan;
    5. The number of participants affected because of the failure relative to the number of participants who could have been affected by the failure;
    6. Whether correction was made within a reasonable time after discovery of the failure; and
    7. The reason for the failure (for example, data errors such as errors in the transcription of data, the transposition of numbers, or minor arithmetic errors).


Approval of a VCP filing often takes between three and twelve months.

No Correction – Audit CAP:  If no correction is performed regarding an error and the failure is later identified in an IRS audit, the plan sponsor will have to correct the failure at that time and pay a sanction.  The IRS guidance regarding the amount of the sanction states, “the sanction imposed will bear a reasonable relationship to the nature, extent, and severity of the failure, taking into account the extent to which correction occurred before audit.”  The IRS generally takes the position that the tax could be as high as the fees that would be paid if the plan were disqualified (which depends on the amount of assets in the plan) and negotiates from there.


Please contact Natalie Nathanson or your local Jackson Lewis Employee Benefits attorney to discuss whether your 401(k) plan must take corrective action.

Association Health Plans—Are They Really an Option to Consider?

As discussed during our recent webinar, the finalized DOL regulations for qualifying “association health plans” will likely create new opportunities for sole proprietors and other primarily small businesses and other trade groups to band together in a coordinated manner to purchase more affordable health insurance as a “single employer” in 2019 and beyond.  That said, business and state regulatory challenges remain that could impact the realistic viability of these arrangements in the short-term unless and until further DOL guidance is released.  Insurance carrier receptivity to offering coverage options to qualifying association plans remain uncertain and state regulatory response to these new regulations are also beginning.  As an example, Vermont has already announced emergency plans to amend existing regulations to immediately impose additional requirements on association plans under that state’s jurisdiction and control.  New York and Massachusetts have also threatened to sue to prevent implementation of these new rules in their states.  We are actively watching all developments in each state, and assisting organizations in evaluating the feasibility of these arrangements given the context of current circumstances.

Blockchain Tokens as Compensation

Blockchain is a revolutionary technological tool in the way it tracks and stores data, decentralizes information, establishes trust in electronic files, and dispenses of intermediaries. This technology powers virtual currencies, also known as cryptocurrency or virtual tokens. Companies are raising money using “initial coin offerings” (ICOs) and using tokens to compensate and incentivize founders, directors, employees, and consultants. This raises legal questions as to how the tokens will be viewed and regulated by the Internal Revenue Service (IRS) and the U.S. Securities and Exchange Commission (SEC).

How are employers using tokens in an employment context? They are being used like equity or phantom-equity awards, granted as compensation for past or future services. They may be subject to vesting based on continued service or achievement of performance targets, and acceleration of vesting can be triggered based on designated events, such as the occurrence of a change of control transaction, the termination of an employee without cause, or the achievement of technical milestones. If an employee quits, the employer has the right to repurchase any remaining restricted tokens that have not yet vested.

Token-based awards tend to copy traditional equity-based awards. The standard token award grants tokens outright to the recipient or gives the recipient the right to ­­­buy tokens. “Restricted tokens” are not accessible until vested. “Token options” provide the employee the right, but not the obligation, to purchase a pre-determined number of tokens at a pre-set price, which can be subject to vesting. Finally, employers can issue “restricted token units,” which are promises to pay property (typically, tokens) to the employee in the future, usually after time or performance-based vesting conditions are met.

As with any form of innovation, there are challenges. The IRS has released guidance indicating that tokens issued to individuals in exchange for services would generally be treated as compensation subject to income and payroll taxes under the Internal Revenue Code and reported on Form W-2. Therefore, employers issuing tokens to employees and other service providers must determine the fair market value of the tokens in US dollars to properly report it.

However, it is interesting to note that the IRS does not treat tokens as currency; rather, the IRS views tokens and other cryptocurrencies as property. Therefore, depending on the type of award, the recipient may want to file an election with the IRS to tax the award at the time of grant (an “83(b) election”), although this can be risky if the tokens are later forfeited or fall in value.

The IRS has not issued guidance regarding whether token options are subject to Section 409A of the Internal Revenue Code, so issuers should assume that token options are subject to Section 409A, and should comply with Section 409A. Restricted token units should also be designed with Section 409A compliance in mind.

In addition, the SEC broadly categorizes all token offerings issued to raise money as securities. Therefore, employers who issue token-based compensatory awards should follow Rule 701 or other exemptions from registration under the Securities Act, as well as applicable state securities laws.

The takeaway is that the same tax, securities, and other rules that apply to compensatory equity awards may apply to compensatory tokens.

Arbitration of ERISA Claims – Update

Some of you may remember that back in 2015, we published an article entitled Arbitration of ERISA Claims – Yes You Can!  A link to that article can be found here.  In that article, we suggested that one key reason for adding ERISA claims to your arbitration agreement was to avoid class actions through the inclusion of a class action waiver in the arbitration agreement.  Particularly on the pension side, ERISA class actions can involve millions of dollars of exposure and litigation costs.

Last week, the Supreme Court confronted head on whether the inclusion of a class action waiver in an arbitration agreement violated the National Labor Relations Act.  Ultimately, the Court concluded that class action waivers in employment arbitration agreements are enforceable under the Federal Arbitration Act.  (See our article here for an in-depth discussion of the Supreme Court’s decision).

Based on this decision, employers can be even more confident that class or collective action waivers in arbitration agreements are permissible.  Be on the lookout, however, for our post on the upcoming decision from the Ninth Circuit in the ERISA class action against USC, Munro v. University of Southern California.  The Ninth Circuit heard argument on May 15 on whether a class action waiver in an arbitration agreement is enforceable to prevent a class claim brought on behalf of the plan under Section 502(a)(2) of ERISA.

Excessive Executive Compensation and the Tax Cuts and Jobs Act of 2017: Widening the Net of Negative Tax Consequences for For-Profit and Non-Profit Corporations

With all the national press coverage about tax savings, tax cuts and company bonus payments associated with the Tax Cuts and Jobs Act of 2017 (the “Tax Act”), it is easy to miss the changes in federal tax laws that impose substantial negative tax consequences on employers that pay certain executives an amount of compensation that Congress has deemed “excessive.” In this particular area, the changes brought about by the Tax Act do not cut taxes. Rather, for many for-profit and non-profit corporations, the Tax Act creates new taxes.

For example, the Tax Act provides for a new Section 4960 of the Internal Revenue Code. This statutory provision creates an excise tax that will be imposed upon certain tax exempt organizations that pay their covered employees remuneration in excess of $1 million annually or that make an excess parachute payment to a covered employee. This new excise tax impacts 501(a) tax exempt entities (i.e., charitable organizations); farmers’ cooperative organizations; states, political subdivisions and public utilities with income excluded from taxation under Code section 115; and political organizations as defined by Code § 527(e)(1). “Covered employees” are the five highest compensated employees of the organization for the tax year, or a person who was a covered employee for any preceding tax year beginning after December 31, 2016.

The Code § 4960 excise tax payment may be triggered by an excess parachute payment. The term “excess parachute payment” is a payment, triggered by a covered employee’s separation from employment, that is equal to or greater than the base amount determined under the golden parachute rules of Code § 280G(d)(3). Tax exempt organizations may also be surprised to find that they can become liable for excise tax under Code § 4960 because the $1 million compensation threshold is exceeded due to the vesting (rather than payment) of ineligible deferred compensation under Code § 457(f). Thus, a covered employee need not actually receive payment of compensation for a tax exempt organization to incur excise tax liability under the new law.

The excise tax under Code § 4960 is 21% of the sum of the remuneration received by the covered employee in excess of $1 million, plus any excess parachute payment paid to a covered employee.

For-profit corporations may be surprised by the Tax Act’s additions to Code § 162(m), which broaden both the application of the excessive employee remuneration rules in terms of what type of entity is subject to Section 162(m) and in terms of who is a “covered employee under” that statutory provision.

Code § 162(m)(1) provides that a publicly held corporation may not take a deduction for any applicable employee remuneration with respect to any covered employee that receives such remuneration in excess of $1 million annually. The Tax Act expands the scope of the terms “publicly held corporation” beyond those entities that issue classes of common equity securities that must be registered under Section 12 of the Securities Exchange Act of 1934 (the “Exchange Act”). Code § 162(m) now also applies to corporations that are issuers as defined in Section 3 of the Exchange Act, and are required to file reports under Section 15(d) of the Exchange Act. Consequently, any company that is an “issuer” required to file a registration statement for debt or equity securities is subject to Code § 162(m), whether or not they are listed on an exchange. As a result, the $1 million deduction limit on remuneration paid to covered employees now applies to foreign companies that are publicly traded through American depository receipts as well as all domestic publicly traded companies. Certain large private corporations may also fall within Code § 162(m).

The term “covered employee” has also been expanded under Code § 162(m) beyond the CEO or the four most highly paid officers of the company. Under the Tax Act, Code § 162(m) applies to the CEO, the CFO and the three other highest compensated company officers for the tax year.

The Tax Act’s provisions do not apply to remuneration paid pursuant to a written binding agreement in effect on November 2, 2017, and which has not been substantially modified in any material respect on or after that date. Contracts that are subject to cancellation by either party, or which expire on or before November 2, 2017, and are renewed on or after that date, will likely be treated as a new agreement subject to the amended Code § 162(m), according to the Committee Reports commentary under the Tax Act.

Given the new and broadening regulation of excess compensation under the Tax Act, non-profit organizations and large corporations are encouraged to review their executives’ compensation packages with their tax advisors to determine the impact on income received by the executives due to vesting and forfeiture provisions in deferred compensation plans, payments made under severance agreements and compensation packages described in employment agreements.

IRS Reverses the $50 HSA Reduction for 2018

We recently informed you that the IRS reduced the 2018 health savings account (“HSA”) contribution limit for individuals with family coverage to $6,850.00 despite having previously announced that such limit was $6,900.  Because of compelling comments from stakeholders, the IRS reversed this decision in Revenue Procedure 2018-27 and the contribution limit for individuals with family coverage has reverted back to $6,900 for 2018.  The Revenue Procedure contains helpful guidance regarding how any distributions made in response to the reduced limit published in Revenue Procedure 2018-18 can be undone.

Ultimately, the IRS acknowledged the hardship and cost associated with the lower limit and reasonably reverted to the higher, previously announced, limit.

IRS Issues Guidance FAQs Regarding the Paid Family Leave Federal Tax Credit

This week, the Internal Revenue Service (IRS) issued FAQ guidance regarding the employer tax credit for paid family and medical leave. As a reminder, the Tax Cuts and Jobs Act of 2017 (the Act) provides a tax credit to employers that voluntarily offer paid family and/or medical leave to employees. The FAQs clarify some of the requirements in Section 45S of the Act that an employer’s paid family and/or medical leave policy must include. The FAQs also clarify other details, such as the basis for the credit and the tax credit’s impact on an employer’s deduction for wages paid to an employee who is on a qualifying leave.

For information on how to determine if your company can take advantage of the paid family and medical leave tax credit, read our earlier article on this topic. You can estimate your company’s potential annual tax savings using the Jackson Lewis Paid Family Leave Tax Credit Calculator.

Financial Conflict of Interest in the Eighth Circuit: Trigger of a Less Deferential Standard of Review or Mere Factor in Determining Plan Administrator Abuse of Discretion?

It is well-established under the Employee Retirement Income Security Act of 1974 (“ERISA”) that when an employee benefit plan grants the plan administrator discretion to decide questions of eligibility for benefits or to construe plan terms, judicial review of the plan administrator’s denial of benefits is generally limited to the deferential abuse of discretion standard — pursuant to which a plan administrator’s decision is affirmed if it is reasonable, i.e., a reasonable person could have reached a similar decision given the evidence. Earlier this year, the United States Court of Appeals for the Eighth Circuit, in Boyd v. ConAgra Foods, Inc., 879 F.3d 314 (8th Cir. 2018), clarified when a less deferential standard of review might nonetheless apply in the review of denial of plan benefits under ERISA Section 502(a)(1)(B).

In Boyd, a former executive argued his claim for benefits under a severance plan — the terms of which afforded the plan administrator exclusive authority to interpret the plan and decide all questions of eligibility for benefits — had been wrongly denied. The former executive argued a standard of review that was less deferential than the abuse of discretion standard should apply. Specifically, the former executive argued for a “sliding scale” standard of review, in accordance with Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998) and its progeny — which held that a less deferential standard of review applied where a claimant showed a conflict of interest or a serious procedural irregularity by the plan administrator that amounted to a breach of fiduciary duty. The former executive predicated his argument on the financial conflict of interest in the case — i.e., ConAgra’s role as both the plan administrator who determined eligibility for benefits and the plan sponsor who was obligated to pay for benefits awarded under the plan — as well as alleged procedural irregularity — a ConAgra human resources employee’s alleged misstatement during the administrative claim review process concerning the former executive’s continued authority over a corporate program.

The Boyd Court noted that pursuant to the holding in Metro Life Ins. v. Glenn, 554 U.S. 105 (2008), a financial conflict of interest is merely a factor that a court should consider in determining whether a plan administrator has abused its discretion — not a basis for applying a less deferential standard of review. The Court explained that — although apparently substantially similar — a less deferential standard of review versus consideration of financial conflict of interest in conjunction with an abuse of discretion standard of review were distinct concepts. The Court explained that Glenn abrogated Woo to the extent Woo allowed a less deferential standard of review based on a mere financial conflict of interest. Finally, the Court noted that the Eighth Circuit had yet to resolve the impact of Glenn on Woo to the extent the latter allowed a less deferential standard of review based on procedural irregularity. The Boyd Court did not reach that issue, based on its conclusion that the alleged misstatement by the human resources employee to the former executive did not implicate the plan administrator’s procedures in reviewing the claim for severance benefits.

Importantly, the Boyd Court explained that the weight afforded to a financial conflict of interest would depend on the facts of the case, with the conflict being afforded little weight — perhaps almost no weight — where the record contained evidence concerning the procedural safeguards surrounding administration of the plan in question.

Best Practices: Plan sponsors should have employee benefits counsel provide annual fiduciary training to plan administrative committees. Plan sponsors who can show their administrative committees have been trained to administer a plan in accordance with its terms for the sole benefit of participants — and without regard to any consideration of plan sponsor financial liability — will be in the best position to have denied claims reviewed under the deferential abuse of discretion standard, with any financial conflict of interest treated as a mere factor that is afforded minimal weight.

Was Your Employee Benefit Plan Selected For Examination? Don’t Panic!

Each year, hundreds of retirement plans are examined by the Internal Revenue Service (IRS) and Department of Labor (DOL).  The agencies also examine other kinds of employee benefit plans for compliance with statutes and regulations with respect to which they have enforcement authority.  In particular, the DOL has increased its examinations of group health plans in recent years in connection with the Employee Benefit Security Administration’s Health Benefits Security Project.  The agencies are particularly focused on compliance issues that pose the greatest potential risk to the largest numbers of employees.

Be Prepared

As with any situation you’d rather avoid, being prepared is always the best way to ensure that an examination isn’t any worse than your worst expectations.  With enough preparation, even your worst expectations shouldn’t be so bad.  A significant element of being prepared is self-auditing.  Regularly.

Focus particularly on the most common compliance issues.  For tax-qualified retirement plans examined by the IRS, these tend to involve failures related to (among other things) timely amending plan documents, administering compensation and eligibility rules consistent with plan terms, and making impermissible distributions.  Even if your plan financials are audited annually by a third party (for example, ERISA-covered retirement plans), do your own spot-checking for common trouble-makers like misinterpretations of eligibility rules and misapplication of the definition of compensation.

Both the IRS and the DOL publish self-audit tools.  The IRS’ compliance checklists, guide to common plan requirements, and “fix-it” guides are practical resources for 401(k) and 403(b) plan sponsors.  These include lists and explanations of specific Internal Revenue Code requirements for retirement plan tax-qualification and step-by-step ways to correct certain mistakes that could otherwise cause a plan to be disqualified.  The DOL’s self-compliance tool for group health plans may be especially helpful for plan sponsors who’ve not had a group health plan examination in the last couple of years.

Understand the Examination Process

Both the IRS and DOL publish examination guides.  The IRS’ examination process guide includes links to fairly detailed explanations of each of eleven stages of a typical examination.  The DOL’s initial investigation guidelines for group health plans are also readily available and will give group health plan sponsors some insight into the examination process.

Depending on whether your plan was selected for examination based on purely random selection, participant complaint(s), referral from another government agency, an anomaly in the plan’s annual report, or a particular market segment focus the agency’s national office has at the time, the examination process might veer significantly from the usual.  Also, if your plan has previously corrected failures under the IRS’s Employee Plans Compliance Resolution Program, be prepared to demonstrate that the full correction was made, including corrective action taken to prevent recurrence of the same failure.

Some examinations will involve on-site visits and others will not.  Also, some agents will want to communicate solely via fax or regular mail and others will permit email communication.  Many agents these days do not work out of an office every day and, therefore, will be difficult to reach by telephone.  Be prepared to be flexible and accommodating but do not hesitate to ask for the same from your assigned agent – for example, if you need more time to respond fully to an information or document request.

The examination will conclude with either a clean bill of health or (more likely) identification of one or more errors that need to be corrected.  Make sure you fully understand the error(s) identified as well as the proposed correction(s) and any penalties.  If you disagree with the agent’s conclusions, understand your appeal rights and those procedures.

Keep It In Perspective

The government’s objective in any plan compliance examination is to identify compliance failures.  It never pays to deliberately ruffle the feathers of a public servant whose job it is to find your mistakes.  Be professional and considerate and expect the same conduct from the agent.  Among other things, this means responding by whatever deadline is given (extended or otherwise) with documents and information organized in a way that makes it easy for the agent to do his or her job.

In any event, keep in mind that total compliance is virtually unheard of and every failure has a resolution.