Employee Benefits and Executive Compensation

Saul Ewing’s Labor, Employment and Employee Benefits (LEEB) attorneys represent large and medium size employers, including tax-exempt organizations, and plans on a wide range of employee benefit and executive compensation issues. Our work for these clients includes counseling, regulatory compliance and representing employers and plans in lawsuits.

COUNSELING AND COMPLIANCE

The rules covering pension and employee benefit plans change frequently. Our counseling and compliance attorneys assist employers with all aspects of ERISA and tax code compliance, from the periodic updates of large plans needed to comply with changed laws to sophisticated executive compensation arrangements to minimize or defer taxation. Our work in this area includes:

• Tax-Qualified Retirement Plans: Design and draft all types of qualified plans, including profit sharing plans, 401(k) plans, 403(b) tax sheltered annuities and custodial accounts, employee stock ownership plans and traditional and cash balance defined benefit plans; advise and counsel regarding ERISA and tax compliance; represent interests before IRS, DOL and PBGC in connection with audits and voluntary compliance resolution programs.
• Executive Compensation: Design and draft executive compensation arrangements, including supplemental retirement plans, nonqualified deferred compensation plans and incentive programs; Section 457(b) “eligible” and Section 457(f) “ineligible” plans for tax-exempt employers; structure related funding techniques using COLI, split-dollar life insurance and "rabbi" trust arrangements; advise and counsel regarding tax matters, including under IRC Sections 162(m) and 409A; design and draft executive employment and change in control agreements; draft and advise on SEC proxy disclosure; counsel boards and compensation committees on related fiduciary and corporate governance issues.
• Stock-Based Compensation Plans: Design and draft stock-based compensation arrangements, including stock option plans, employee stock purchase plans, restricted stock plans, stock appreciation rights, and phantom equity plans; structure employer stock investments under tax-qualified plans; advise and counsel on related tax and securities laws compliance, such as stock plan registration statements, proxy disclosure of director and officer grants and Section 16 short-swing liability issues and reporting requirements.Our employee benefits practice is integrated in the LEEB Practice Group, rather than a tax department, because we have found that most projects require multiple disciplines in employment and labor law. This is particularly true with executive compensation and agreements and restructuring/downsizing programs.
• Health and Welfare Plans: Design and draft various heath and welfare plans, including cafeteria plans and flexible spending accounts; review administrative service agreements and other vendor agreements related to self-insured medical programs; advise and counsel regarding claims administration procedures and disputes; advise and counsel regarding compliance with COBRA, HIPAA and the FMLA.
• ERISA Plan Investment Issues: Advise and counsel on fiduciary and prohibited transaction issues, including review of plan investment agreements and training of plan administrative and fiduciary committees on ERISA.
• Mergers, Acquisitions, Dispositions and Other Business Transactions: Conduct due diligence reviews; draft and negotiate employee benefit provisions, severance and stay bonus arrangements; advise and counsel on post-closing plan integration and transition issues, such as plan spin-offs and plan asset transfers, executive compensation and benefit planning matters.
• Governmental Plans: Represent governmental plans and the employer sponsors of such plans, including public colleges and universities, transportation authorities and state and local governments. Our work in this area includes assisting governmental employers and plans in the complex maze of federal and state laws that apply to governmental plans, such as coverage and eligibility, funding , benefit revisions and issues arising from privatization. We also advise governmental entities on deferred compensation and incentive arrangements for employees.

ERISA/BENEFIT LITIGATION

Our litigators have defended employers and plans across the United States for more than 30 years. Our ERISA litigation practice includes a wide range of cases, including:

• Insurer Coverage/Eligibility Litigation: Represent insurers and employers in ERISA coverage and eligibility litigation, ranging from individual claims for long term disability; severance, medical and death benefits to fiduciary insurance matters.
• Claims from layoffs and change in corporate ownership: Counsel employers in class and multi-party ERISA claims arising from layoffs and changes in company ownership. Defend employers being sued for enhanced early retirement benefits, severance and post-employment medical benefits and a host of other claims under ERISA and collective bargaining agreements (labor contracts). The preemption and exhaustion rules of ERISA can help avoid state law claims with larger damages and jury trials where the client’s interest is served by bench trial. For employers who contribute to multi-employer plans we have represented employers and plans in multi-employer withdrawal liability claims since the claims were first enacted in 1982.
• Breach of fiduciary duty: When the stock market drops and 401(k) accounts fall in value, unhappy participants look for someone to blame, and the sponsoring employer is often the most obvious defendant. We represent plans and plan sponsors in defending against court claims and administrative investigations. Our clients have ranged from Fortune 50 employers to owner-managed businesses.