EMPLOYMENT (EMPLOYEE BENEFITS) | Marc Cunningham LLC

Employment (Employee Benefits)

Experience with many types of employee benefits-related issues.

Experience with tax-qualified and non-qualified retirement plans, such as U.S. Department Of Labor (DOL) and Internal Revenue Service (IRS) voluntary correction programs, Internal Revenue Code (IRC) 409A, IRS audits, plan design and management, plan termination.

Experience with employers on health and welfare plan matters, executive compensation, 401(k) and retirement plans, and other benefits for executives and employees.

Reviewed and analyzed documents, fact situations, and relevant laws and rules, and provided consultation to in-house lawyers, the pension benefits team manager, agency management including the board of trustees, and other agency staff, plan members, retirees, beneficiaries, and the general public, as applicable, regarding pension benefits.

Provided consultation and legal support related to the collection of amounts due to the retirement plan, pension benefits, trust participants, and coordinated with management to ensure compliance with plan qualifications, tax requirements, and other relevant federal and state laws affecting qualified governmental plans.

Responded to discovery requests and subpoenas regarding requests for member information, including analysis and determination regarding whether confidential information may be disclosed, and then corresponding with the relevant requestors.

Provided analysis and guidance to ensure the proper division of assets in divorce, such as retirement benefits, stock options, investment accounts, and businesses

Evaluated tax implications of asset division in divorce cases.

Prepared various domestic relations orders (DROs), eligible domestic relations orders (EDROs), qualified domestic relations orders (QDROs), and other legal documents required to allocate retirement accounts.

Analyzed to determine if an order was a QDRO and assisted other legal staff in administering QDROs.

Reviewed administrative writs, child support orders, bankruptcy notices, criminal restitution writs, court orders, federal student loan garnishment orders, guardianship orders, IRS tax levies, powers of attorney, subpoenas, third-party discovery, trust funds, and provided consultation and legal support regarding the administration of pension benefits.

Developed training materials and provided training to management and staff regarding pension benefits.

Reviewed proposed pension plan publications for legal sufficiency, and provided consultation regarding web-based access to personal information and pension plan transactions.

Drafted rules and assisted with rule-making, including preparation of rule preambles and coordination with staff in affected departments, and coordinated periodic rule reviews as required by statute.

Supported attorneys representing the agency at administrative hearings in administrative appeals, including preparing pleadings, briefs, notices, motions, and orders, gathers evidence, conducting discovery and hearings.

Assisted with employee benefits-related litigation, researched and analyzed legal issues and prepared legal memoranda, reviewed evidence, prepared discovery responses and affidavits, and assisted in defense or prosecution of litigations.

Attended meetings of the board, board committees, medical board or advisory committees, assisted with preparing meeting materials, such as drafting proposed resolutions, meeting minutes, and related materials.

Representation as assigned in meetings and negotiations with other attorneys and external participants.

Prepared letters, memoranda, bills, or analysis for legislative consideration, policies, guidelines, procedures, contracts, and other materials as assigned.

Managed the related work of legal assistants and support staff, supervised the related work of attorneys and other departmental staff when designated as lead attorney with regard to assigned matters.

Experience with fiduciary responsibilities and ethics issues.

Advised the human resources compensation team on issues related to employee stock plans and compensation programs generally, benefit issues, company policy, practices and procedures.

Drafted plan amendments, summary plan descriptions, plan information statements, and equity award agreements.

Monitored changing legislation and regulations affecting employee benefit plans to ensure documents for those plans are up to date with these changes and the plans are administered consistently.

Assist with U.S. Securities and Exchange Commission (SEC) and other regulatory filings, reporting and disclosure obligations, including Forms 8-K, 10-K, 10-Q and 11-K, and state filings.

Advised on proposed changes to company policies, practices and business operations.

Assisted C-Suite with preparations for annual meetings of stockholders and drafting of proxy statements.

Compliance with relevant federal tax and securities laws (such as the Securities Act, Dodd-Frank, IRC, Sarbanes-Oxley, Securities Exchange Act) and general familiarity with applicable foreign laws related to employee stock plans in non-U.S. jurisdictions.

Experience with employee stock ownership plan (ESOP) transactions.

Experience with structuring executive compensation packages, multi-employer plan withdrawal liability, qualified defined benefit plans.

Retirement plan work, 401(k) plans, cash balance, governmental plans, traditional defined benefit plans, tax-exempt.

Consultation regarding employee benefits, executive compensation plans, health and welfare plans and retirement plans.

Consultation with the sales teams, account managers, and directly with clients to provide education and create awareness regarding potential risks.

Consultation regarding compliance with benefit laws, implications to benefit plans, and how to take the necessary steps to remain in compliance

Conducted compliance reviews, create a compliance gap analysis that outlined compliance considerations and crafted suggestions for becoming compliant.

Facilitated client requests and document management in response to an audit of health and welfare plans.

Collaborated with management to facilitate compliance with health and welfare plan legal obligations.

Knowledge of the regulatory processes and tracked employee benefit plan legislation.

Training and presentations regarding the legal aspects of health and welfare benefits plans.

Contributed to written compliance resources, including white papers, FAQs, and other resources for internal and external training.

Assisted regional directors in developing practical solutions for clients to comply with federal and state regulations impacting health and welfare plans.

Worked with the compliance consulting team to research, develop, deliver, and maintain compliance information for staff and clients.

Provided compliance guidance regarding employee benefit plans to both management and personnel, regarding applicable federal and state laws, corporate policies and procedures.

Responded directly to client inquiries and consulted on benefits-related questions, to mitigate corporate risk.

Tracked healthcare-related legislation and regulations to provide analysis, counsel, updates, thought leadership and training on pending legislative and regulatory changes.

Developed and maintained written educational tools for health and welfare employee benefits compliance.

Drafted, negotiated, modified, and updated contracts, agreements, and other legal documents.

Participated in the definition and development of health and welfare corporate policies, procedures and programs.

Experience in cash and equity-based incentives deferred compensation plans, executive compensation, employee benefits and employment matters and pensions, in both Canada and the United States, for clients such as public and private companies, investors, major financial institutions, foreign and domestic banks, insurance companies, trust companies, investment funds and individuals.

Corrected plan qualification defects through the DOL Employee Plans Compliance Resolution Service.

Provided consultation regarding plan asset rules under the Employee Retirement Income Security Act (ERISA) regarding the investment of retirement plan assets in private equity funds and hedge funds, negotiated side letters and reviewed corporate operating agreements.

Working knowledge of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), as well as state benefit mandates and laws.

Compliance regarding COBRA administration, and provided consultation regarding the Health Insurance Portability and Accountability Act (HIPAA), including the privacy rules, health-status discrimination, and special enrollment rules.

Consultation regarding fringe benefit, health and welfare benefit plans, such as adoption assistance, cafeteria plan, dependent care flexible spending accounts group health (including COBRA and HIPAA issues), health care flexible spending accounts, health care reimbursement arrangements, health savings accounts, qualified transportation.

Advised with respect to the Patient Protection and Affordable Care Act (PPACA) (a/k/a "Affordable Care Act" or "Obamacare"), tax and ERISA issues relating to the establishment and administration of welfare benefit plans – such as cafeteria plans, group health, health and disability plans, on-site medical clinics, retiree benefits plans, severance plans, voluntary employees’ beneficiary associations (VEBAs).

Structured benefit plans to comply with the Service Contract Act (SCA), in consultation with employment and government contracting attorney subject matter experts (SMEs).

Compliance with ERISA (which regulates employers who offer pension or welfare benefit plans for their employees), ERISA Title I as administered by the Employee Benefits Security Administration (EBSA) (which imposes Federal disclosure and reporting requirements – that preempt many similar state laws – on pension and welfare benefit plan fiduciaries and any persons having administrative responsibilities for employee benefit plans), ERISA Title IV (under which employers and plan administrators must fund an insurance system to protect retirement benefits, with premiums paid to the federal government's Pension Benefit Guaranty Corporation).

Compliance with EBSA reporting requirements for continuation of health-care provisions, as required under COBRA and the health care portability requirements on group plans under HIPAA.

Consultation regarding employment, severance and other service-related contracts in the transactional context (such as diligence, transaction agreement and schedules, negotiation of going-forward employment and equity terms for senior management, golden parachutes pursuant to 26 U.S. Code Section 280G), and ERISA Title I issues (such as plan asset rules, from both the fund and investor perspective) in the employment-law context.

Drafted and reviewed participant communications for compliance with ERISA and the IRC.

Drafted plan documents and summary plan descriptions for compliance with ERISA and the IRC.

Negotiated service provider, investment management and consulting agreements.

Experience with plans (qualified and non-qualified retirement, health and welfare) related to Federal law, such as HIPAA and the PPACA.

Guided internal teams to resolve complex compliance issues for clients, including resolution of DOL Form 5500 filing errors, compliance with PPACA and HIPAA reporting requirements, and mergers and acquisitions support.

Consultation regarding claims by participants related to investment losses by plan administrators and additional coverage restrictions.

Experience with many aspects of supplemental employee benefits compensation, such as child care benefits, health insurance, housing, life insurance, paid vacations, pensions, profit sharing, relocation expenses, sick leave, short-term and long-term disability insurance, tuition reimbursement.

Consultation regarding deferred compensation employee benefits – remuneration payable in cash, where payment has been postponed or deferred to a later date, such as a later taxable year – supplemental and excess plans, including pension and profit sharing plans, such as 401(k) plans – allowing an election to have contributions credited to the plan account rather than receiving that portion of wages in cash – or stock bonus plans, stock options (whether nonqualified or incentive stock options), including employee stock ownership plans (ESOPs), which are structured very-similarly to profit sharing plans but which are funded primarily with employer stock and can distribute benefits to the employees in the form of employer stock rather than cash, stock purchase plans (such as IRC Section 423 plans) and long-term incentive plans.

Consultation regarding subrogation of reimbursement and overpayment claims under ERISA-related health care plans.

Consultation regarding the administration, amendment, implementation, structure and termination of cross-tested profit-sharing plans, employee stock ownership plans (ESOPs), money purchase pension plans, retirement plans – such as defined benefit (including cash balance, hybrid, and pension) – and target benefit plans.

Prepared plan documents, trust agreements, Internal Revenue Service (IRS) filings, summary plan descriptions and rendered advice on related ERISA, tax, and securities law matters.

Advice in connection with service provider conversions, drafted and reviewed service agreements, discrimination testing, and related planning opportunities.

Provided full operational support to ensure retirement plans stay in compliance with ERISA statutory requirements, the Internal Revenue Code (IRC), and other federal and state requirements, including with regard to late deposits, excise taxes, and corrections

Conducted compliance audits and handled submissions under the IRS's Employee Plans Compliance Resolution System and the Voluntary Fiduciary Correction Program of the U.S. Department of Labor (DOL)

Drafted plan documents (including “wrap plans”), provided consultation regarding the administration, reduction of benefits, structuring and termination of welfare benefit plans, and compliance for wellness programs.

Compliance with the Mental Health Parity and Addiction Equity Act (MHPAEA) regarding substance abuse benefits.

Claims reviews and responses to DOL audits of health plans.

Consultation for establishing direct contracting for association health plans (AHPs).

Compliance and legal support for telemedicine service offerings.

Working knowledge of IRC Section 125 cafeteria plans.

Consultation regarding the correction methods for nonqualified deferred compensation plans.

Representation for employers and executives in connection with the negotiation of employment and severance agreements, and on a variety of executive compensation benefits, including deferred compensation, incentive compensation arrangements, loans, performance shares, performance units, phantom awards, restricted stock, restricted stock units, stock appreciation rights and stock options.

Assisted in designing executive compensation programs, including performance-based compensation, shareholder best practices, proxy assistance.

Consultation regarding the fiduciary obligations of multiemployer plan administrators, agreements with service providers, regarding administration, government registrations, investment selections, permitted and prohibited transactions, plan communications and tax-related matters.

Provided “withdrawal liability” counseling and worked with actuaries on liability reduction.

Provided consultation about how to communicate clear and accurate information about benefits issues to employees and plan participants.

Consultation on compliance with obligations to provide accurate summary plan descriptions, prepare required notices under ERISA and the IRC.

Crafted responses to individual participant inquiries regarding rights under a particular plan.

Prepared required notices to participants in connection with certain submissions to government agencies (including the requirements for using electronic means for adequate disclosure).

Assisted in developing informational materials and presentations relating to employee 401(k) plans.

Consultation regarding tax-qualified deferred compensation plans, such as 401(k), 403(b) and 457, defined benefit pension, employee stock ownership, profit-sharing, stock bonus.

Consultation regarding conduct training, the establishment of governance best practices (such as committee charters, investment policy statements, and benefits tech policies), fiduciary responsibilities, pension investment questions, prohibited transactions and prudence questions.

Attended fiduciary committee meetings to provide legal support to the committee on issues, as they arise

Consultation for employers, benefits committees, investment managers and advisors, trustees, and other plan service providers through ERISA fiduciary requirements and applicable DOL regulations to help minimize the risk of liability.

Drafted, negotiated and reviewed agreements that allowed a plan sponsor to appoint an investment manager as an ERISA 3(38) fiduciary who has discretion, authority, and control over plan assets.

Provided advice with respect to the ERISA and tax law aspects of non-qualified plans, including the issues that arise under IRC Sections 409A and 457, as well as alternative methods of "securing" the employer's commitments under the plan or agreement (such as using a grantor or "rabbi" trust).

For mergers and acquisitions (M&A) transactions, analyzed and negotiated executive benefits, pension and welfare issues, resolved benefit plan-related problems and liabilities, and provided consultation regarding the consolidation of benefit plans after completion of the transactions.

Consultation regarding other types of employee benefit services, such as benefits claims and litigation, employee benefits compliance, audit, and correction issues, and employee benefits due diligence for M&A transactions.

Assisted with the design of severance and early retirement programs when an employer needs to "down-size" or "right-size" to ease the transition, and provided counseling on compliance with all relevant federal and state laws.

Assisted plan sponsors with analyzing the impact of restructuring on their employee benefit plans and addressing approaches for the consolidation of plans or the adoption of new plans.

Worked with in-house health care attorneys on HIPAA privacy and security corporate policies.

Addressed human resources (HR) and benefits technology data privacy and security issues with data privacy SMEs, and conducted security risk assessments

Advised health care attorneys SMEs on direct contracting and association health plans.

Drafted, negotiated and reviewed employment and separation agreements, and designed strategic workplace programs with employment attorney SMEs.

Worked with labor attorney SMEs in collective bargaining situations on benefits issues in negotiations and renewals.

Provided employee benefits information to tax attorney SMEs in the context of corporate transactions.

Research, testing, use, recommendation, specification and procurement of various benefits management software platforms, such as ABM, ADP TotalSource, AdminaHealth, ALEX, Arcoro, Asure Benefits Administration, BambooHR, Bayzat Benefits, Benefits Solution, BenefitDriven.com, BeneFinder, Benefitfocus, BenefitNet, BenefitPoint, benefitsCONNECT, Benefitsolver, BeneLink, Benelogic, Benify, BenSelect, BerniePortal, BirdDogHR, bob, bswift, COBRAGuard, Criterion HCM, Collage, Common Benefits, Ease, eBenefits, Employee Benefits Administration, Employee Navigator, Empyrean Benefits Administration Technology Platform, EverythingBenefits, Flock, GoCo, Healthaxis, Hodges-Mace, HRx, iElect, Infinisource, Justworks, LynchVal, Maxwell Health, My HR Storage, Namely, Netchex, Paycom, PeopleGuru HCM, PlanSource, PensionGold, PeopleKeep, PLEXIS Payer Platforms, PrismHR, PX3000, Qualtrics Employee Experience, Rippling, Rise, ScalePEO, Summit, ThrivePass Benefits Suite, Total Benefits Administration Suite, UZIO, Vbas, Vestwell, Virtual Benefits Administrator, Web Benefits Design, Workzoom, Zenefits.

Last updated 200615_1842