In today’s competitive work environment, it’s imperative to offer employee benefit and executive compensation programs that attract, retain and incentivize the best talent. At Phillips Lytle, our attorneys help clients put together cost-effective packages that do just that.
We provide legal services to a range of employers, including publicly traded companies, closely held businesses, government organizations, and tax-exempt employers. We have extensive experience in designing benefit plans and compensation arrangements, preparing and reviewing plan documentation and governmental filings, representing clients in governmental audits and investigations, and providing counsel on issues affecting employee benefit plans and executive compensation agreements.
Our attorneys focus not only on compliance issues relating to the unique statutory and regulatory environment affecting employee benefit plans and executive compensation arrangements, but also on planning and business opportunities that require consideration of related issues.
QUALIFIED RETIREMENT PLANS
We work with our clients in the design, drafting, prototype review, amendment and termination of tax-qualified retirement plans, including profit-sharing plans, 401(k) plans, thrift plans, 403(b) plans, ESOPs, defined benefit pension plans, cash balance plans, money purchase pension plans, 412(i) plans, multiple employer plans and multiemployer plans. We also assist with Internal Revenue Code and ERISA compliance.
Employee Stock Ownership Plans (ESOPs)
We advise companies and fiduciaries on the corporate, tax, employee benefits and fiduciary requirements impacting Employee Stock Ownership Plans. We regularly assist clients with the design, implementation and administration of ESOPs.
We advise clients and boards of directors of ESOP companies on their fiduciary duties. We also advise companies and fiduciaries on DOL investigations and litigation involving ESOPs.
HEALTH, WELFARE AND FRINGE BENEFIT PLANS
We advise clients on the design, documentation, implementation and administration of various health, welfare and fringe benefit plans; consumer-driven reimbursement arrangements (e.g., flexible spending accounts); and wellness programs. In addition, we assist clients with the exploration and identification of proper funding vehicles for these plans, including insurance, self-funding, benefit trusts and voluntary employees’ benefit associations (VEBAs). We regularly work with clients to develop internal policies and administrative procedures on matters regarding the Affordable Care Act (ACA), the Health Insurance Portability and Accountability Act (HIPAA), the Consolidated Omnibus Budget Reconciliation Act (COBRA) and other health-related laws. We also conduct employee training sessions to ensure ongoing compliance with these laws.
NONQUALIFIED DEFERRED COMPENSATION ARRANGEMENTS
Because of the nondiscrimination limits placed on qualified retirement plans, nonqualified deferred compensation arrangements may be important in order to attract, motivate and retain executives and other high-level employees. These arrangements can be structured in a variety of ways depending on the objectives of the employer and the needs of the employee. Our attorneys assist clients in selecting from the many available alternatives and in the design, documentation and implementation of such plans and related funding vehicles. Our advice addresses the related tax, securities and corporate law issues that may arise, including the application of Code Section 409A.
Equity-based compensation provides an incentive for employees to align their interests with those of the employer’s owners. Our Employee Benefits & Executive Compensation Team, working with the firm’s Corporate, Securities and Tax attorneys, has designed a variety of equity-based compensation arrangements, including qualified stock options (QSOs), non-qualified stock options (NSO), stock appreciation rights (SARs), phantom stock, stock purchase plans, restricted stock agreements, profits interests and comparable arrangements for limited liability companies (LLCs).
Well-designed executive compensation arrangements enable organizations to attract and retain the best executives and better align organizational goals with the interests of executives. Our Employee Benefits & Executive Compensation Team, often working in tandem with the firm’s Corporate, Securities, Tax, and Labor & Employment attorneys, has assisted our clients in creating compensation arrangements designed to incentivize groups and individuals and report these arrangements for corporate governance and securities law purposes.
BUSINESS ACQUISITIONS, DIVESTITURES AND MERGERS
Operational responsibilities and financial liabilities associated with retirement plans, welfare plans, equity-based compensation and executive compensation arrangements are important considerations in the acquisition, divestiture or merger of business entities, whether for-profit or not-for-profit. Our attorneys are experienced in evaluating these responsibilities and liabilities, performing related due diligence examinations, and structuring the employee benefit and executive compensation aspects of transactions, both from the perspective of the acquiring institution, as well as the divesting institution.
ERISA FIDUCIARY DUTIES
We assist clients in complying with the Employee Retirement Income Security Act (ERISA) fiduciary duties, with respect to employee pension and welfare benefit plans, including the appointment and chartering of plan fiduciaries, fiduciary procedures and record-keeping, benefit claims and appeals procedures, minimization of litigation risk, and the analysis and avoidance of prohibited transactions.
We also have experience in benefits litigation involving ERISA and other statutes affecting employee benefit plans. Our Employee Benefits & Executive Compensation Team, working with the firm’s Litigation and Labor & Employment attorneys, has represented employers, employee benefit plans and fiduciaries, as well as insurers in litigation, including class action litigation, arising from benefit claims, governmental investigations, contested plan interpretations, and other claims related to the sponsorship and administration of employee benefit plans. However, our attorneys ideally aim to counsel clients on strategies to avoid such lawsuits.