Archive for the 'Benefits' Category

Mergers and Acquisitions – Don’t Ignore ERISA Employee Benefit Plans

November 18th, 2008

Generally, there are two different ways that companies can grow their existing businesses – 1) obtaining new customers (organic growth) or 2) merging with or acquiring another company.  Many companies attempt to grow through mergers and acquisitions (“M&A”) as it can allow for the rapid growth of a company’s client base and/or business capabilities.  However, M&As can pose numerous legal challenges to businesses.  One of the most often overlooked area in any M&A deal is employee benefits plans.

During a M&A deal, companies generally perform due diligence across all areas of the target company to identify issues that need to be addressed during the negotiation phase of the deal.  If employee benefits plans are not included in this due diligence, an acquiring company can discover that it has inadvertently become the owner of significant employee benefits plan problems.  While problems that arise in the area of employee benefits plans do not generally become “deal breakers”, ensuring that any and all benefits issues are identified and addressed before the final agreement is signed can avoid major headaches in the future.

Benefit plan issues can vary depending on the type of deal that is being contemplated – either an asset purchase or a stock purchase.  In an asset purchase, the due diligence required for employee benefits plans could be reduced if the agreement does not include the buyer assuming liability for employee benefit plans.  However, even in that situation, due diligence on the benefit plans should still be conducted to ensure that the buyer has a complete picture of the seller’s business.

In a stock purchase deal, or in an asset purchase deal where the buyer is assuming liability for benefit plans, the buyer needs to ensure that significant due diligence is conducted on the existing benefit plans.  Generally, this due diligence should include:

  • Identifying all employee benefit plans, programs and practices currently in existence – both formal written plans and informal, unwritten plans.
  • Obtaining all pertinent documents for each plan identified (e.g., plan documents, summary plan descriptions, Form 5500s, annual nondiscrimination testing and audits, determination letters, third party administrator contracts).
  • Reviewing all documentation to ensure the plans are currently compliant with applicable laws and looking for potential problem areas (e.g., accelerated vesting on change of control, unfunded liabilities, funding arrangements for nonqualified deferred compensation plans).
  • Requesting disclosure on currently pending or threatened claims based on benefit plans and on whether any governmental audits have been commenced or are pending.
  • Identifying potential problems to be addressed during negotiation of the deal.

As stated earlier, issues identified during the due diligence process for employee benefits plans are generally not severe enough to stop a deal from closing.  However, if properly addressed during the negotiation phase, they can be factored in with all the other components in the decision making process.  Where these issues are not properly addressed, they can become a significant concern for the buyer after the deal has completed. 

Benefits counsel can assist in completing comprehensive due diligence of a target company’s benefit plans to ensure that the acquiring company does not get blind-sided by benefit issues in the future.  Please contact our office for additional information or to talk to an attorney about your particular situation.

Operational Non-Compliance in ERISA Qualified Plans Can Cause Problems for Employers

September 15th, 2008

Most employers who sponsor a qualified retirement plan are aware of the requirement that the plan must have a written plan document.  However, just having that document is not enough.  ERISA plan qualification rules also require that the plan be administered according to provisions contained in the governing plan document.  If the plan’s operational administration does not follow the plan document, then the plan is not in compliance and is subject to fines and sanctions, up to plan disqualification.

Unfortunately, just hoping that your retirement plan operations are working correctly is not enough.  In the ERISA retirement plan world, some of the biggest mistakes made by employers are operational errors rather than errors in the actual structure or documents of the plan.  Because not all operational mistakes are “bad” or harmful to employees, many employers do not feel there is an issue if they make an operational error, provided it is to the benefit of the employee.  However, even errors that result in favor of the employee cause a plan operation issue.

For example, a plan document provides that employees are eligible to participate only after 1 year of service, but the employer generously allows newly hired employees to participate immediately upon employment.  This generosity on the part of the employer, while beneficial rather than harmful to employees, is a failure to follow the terms of the plan and would constitute an operational failure that could create problems for the plan’s qualification if not corrected.

According to the IRS, some of the reasons employers give to explain why their plans are not operationally compliant include:

  • Not knowing how to identify and fix any errors.
  • Not wanting to have any unnecessary contact with the IRS.
  • Assuming that the required annual financial audit identifies any errors that need to be addressed.
  • Assuming that auditing the plan for operational compliance would be too expensive.

Employers should routinely self-audit their retirement plans for operational compliance.  This self-audit should be performed at least annually or more often if there are any significant change in demographics or if the employer is involved in a merger or acquisition.  Unfortunately, the annual financial audit performed by your CPA won’t necessarily catch all operational issues that might exist.

If operational mistakes are found, employers need to use the tools available to them to correct the errors quickly and with the minimum of expense.  The IRS recently released the “401(k) Fix-It Guide”, available on the IRS’ website, which provides employers with a list of the most common plan errors and advice on how to fix mistakes for 401(k) plans.

Additionally, one of the best tools available to employers in their quest to correct operational plan errors is the IRS’ Employee Plans Compliance Resolution System (EPCRS).  The EPCRS is a comprehensive system of correction programs offered by the IRS to employers who offer qualified retirement plans.  This program allows employers/plan sponsors to correct plan failures through three separate components:

  • The Self-Correction Program (SCP),
  • The Voluntary Correction Program (VCP), and
  • The Audit Closing Agreement Program (Audit Cap).

The EPCRS was recently updated to assist employers in their voluntary compliance efforts.  The changes are effective as of September 2, 2008 and include:

  • Standardized application forms,
  • Reduced filing fee for some plan loan failures, and
  • Expanded situations where waiver of income and excise taxes are allowed.

Everyone knows that mistakes happen.  Under ERISA, the trick is to identify and correct those mistakes quickly and cost-effectively.  Contrary to popular opinion, the IRS is more interested in ensuring plans are compliant than in “catching” employers doing something wrong.  Benefits counsel can assist your organization in self-auditing your plan to help identify any errors and working with you and any necessary governmental agency to resolve issues.  Please contact our office with any questions or for more information.

Can an Employee’s ERISA Rights Be Waived As Part of an Employment-Based General Release and Waiver?

September 10th, 2008

Most employers have a standard release and waiver that is usually used in conjunction with severance packages for former employees. The former employee agrees not to bring suit against the employer in exchange for the offered severance package. Most release and waivers use broad, inclusive language (as broad as permitted by various employment laws) to ensure that the employer gains the most protection it can. In general, the release and waiver would include language that releases the employer from any claims for employment and/or re-employment by the employee and discharges the employer from any and all causes of actions arising from the employee’s employment. Within this language, specific causes of action and/or statutes are named as examples, including the Employee Retirement Income Security Act of 1974 (ERISA).

Generally, severance release and waivers are held to be enforceable, provided they comply with specific provisions required by laws such as the Older Workers Benefit Protection Act (OWBPA). However, with regards to waiving ERISA rights, a couple of recent cases indicate that employers need to evaluate their release and waiver language and procedures to ensure that they are getting the maximum protection against ERISA claims by former employees.

In March 2006, the U.S. District Court for the District of Connecticut ruled on Linder v. BYK-Chemie USA Inc. In this case, an executive executed a release and waiver upon termination of employment. However, after termination, he brought suit against his former employer based on the calculations used in the executive’s supplemental executive retirement plan (SERP). The court ultimately found that, in this specific case, the executive was barred from bringing suit by the executed release. However, in its ruling, the court adopted the position that the release of ERISA/benefit claims should require a greater scrutiny than the release of general claims. Therefore, the totality of the circumstances surrounding the release should be reviewed to ensure that the employee’s waiver of claims was voluntary and knowing.

In September 2007, the U.S. District Court for the District of Minnesota ruled on Groska v. Northern States Power Co. Pension Plan. In this case, two employers merged and employees were offered a choice of either competing for remaining positions or terminating employment with severance benefits. The plaintiff, Groska, opted to terminate employment and accept severance benefits, which required the execution of a release and waiver. Groska subsequently filed suit under ERISA, alleging improper claim denial and breach of fiduciary duty. With regard to the improper claim denial allegation, the court found that Groska had knowingly and voluntarily signed the release and waiver, so it was enforceable and barred the claim for improper denial. However, the court did not dismiss the breach of fiduciary claim as barred by the release and waiver. The court held that because ERISA recognizes the plan as a separate and distinct legal entity from the employer/plan sponsor, the release and waiver in favor of the employer did not automatically release the plan. Therefore, participants were still able to bring a claim against the plan itself under ERISA.

These decisions should prompt employers to review their “standard” release and waiver language and their processes for obtaining the executed release from former employees. Since the waiving of ERISA claims can be seen as needing a greater level of scrutiny than general contract claims, employers should evaluate whether the language currently being used provides the greatest shield possible. Additionally, since an employer’s release and waivers may not extend protection to the ERISA plan, the language should be updated to ensure the plan itself is afforded the greatest degree of protection available through the employer’s release and waiver. Benefits counsel can assist employers in reviewing the existing release and waiver language. Please contact our office with any questions or for additional information on how our attorneys can assist you.

ERISA Fiduciaries – Could I Really Go to Jail?

August 20th, 2008

The Employee Retirement Income Security Act of 1974 (ERISA) governs the majority of employee benefits plans and includes penalty provisions .  The criminal penalties under ERISA are contained in § 501 of the Act. Originally under ERISA, criminal fines for individuals were $5,000 and potential imprisonment of up to one year.

However, the Sarbanes-Oxley Act (SOX) of 2002 dramatically increased these penalties.  Under SOX, the penalties for individuals were increased to a maximum of $100,000 and with potential imprisonment of up to ten years.  Criminal fines for entities other than individuals went from a maximum of $100,000 to a maximum of $500,000.  These increased penalties apply not only to black-out notices, but also to ERISA’s other plain-vanilla reporting and disclosure requirements.

While it is hard to picture the term “criminal penalties” in conjunction with mundane things like SPDs, SARs, Form 5500 filings and other run-of-the-mill benefit plan documents, there is potential liability when fiduciaries fail in their duties under the plan.

When the Department of Labor (DOL) uncovers egregious behavior involving benefit plans, they have historically brought criminal charges under three sections of ERISA and three sections of the United States Criminal Code.  ERISA’s three most common criminal provisions are aimed at the following:

  • Preventing Criminals from Overseeing Benefit Plans. This provision is aimed at preventing those convicted of certain crimes (robbery, bribery, extortion, embezzlement, perjury, murder, certain drug offenses, labor union violations, and other ERISA offenses) from serving as a fiduciary or service provider of an employee benefit plan.
  • Preventing Violations of Reporting and Disclosure Requirements.  This provision punishes those who commit willful violations of ERISA’s reporting and disclosure requirements in Part 1 of Title 1.  These reporting and disclosure requirements are designed to disclose significant information about the plan and its transactions, provide rights and benefits data to participants and detail the responsibilities for fiduciaries.
  • Preventing the Coercive Interference with Rights to Benefits. This provision is designed to keep employers from terminating or harassing employees to prevent them from getting their vested pension rights.  Criminal sanctions are available where such interference involves willful use of actual or threatened fraud, force, or violence.

In the past, the DOL has taken action and convicted plan administrators and others for failure to file the Form 5500, Annual Return/Reports, or to provide participants with summary plan descriptions, summary annual reports and accrued benefits statements.  Additionally, they have aggressively pursued those fiduciaries that have violated the prohibited transactions rules.

With the new higher criminal penalties which are available, the DOL may become even more aggressive in seeking criminal penalties.  Those that may be fiduciaries of a plan – plan sponsors, plan administrators, service providers and their advisors – need to understand these potential criminal penalties and should consider them when taking action.

Plan sponsors need to ensure they exercise care in the appointment of fiduciaries and ensure there are checks and balances put in place in operating and maintaining a plan.  Additionally, third-party administrators, advisors and other service providers need to be vigilant regarding the actions of their clients and the clients’ plans to which they provide service.

Benefits counsel can assist by discussing potential risks in current plan administration, reviewing compliance with respect to ERISA requirements, and providing training for plan fiduciaries.  Please contact our office for more information on fiduciary liability or other ERISA questions.

Has Your ERISA Defined Contribution Plan Been Updated for 2008 PPA Changes?

August 14th, 2008

The Pension Protection Act of 2006 (PPA) was originally created to effect change to defined benefit plans.  However, the final version of the more than 900 page statute also contains provisions that significantly impact defined contribution (DC) plans.

Among the provisions of the PPA that affect DC plans, some of the most significant changes are effective for the 2008 plan year.  Highlights of a few of the PPA provisions effective for the 2008 plan year include:

Testing Changes

  • Prior to the PPA, employers were required to calculate interest on the gap period for average deferral percentage (ADP) and annual contribution percentage (ACP) test failures. This requirement has been eliminated for ADP and ACP test failures, but is still required for excess deferrals.

Safe Harbor for Automatic Enrollment

  • The PPA provides a safe harbor which allows employers to avoid ADP, ACP and top-heavy testing through an automatic deferral provision and employer match.

Rollovers to Roth IRA

  • Prior to the PPA, Roth IRAs could only accept rollovers from a designated Roth account, a different Roth IRA or a non-Roth IRA (i.e. qualified rollover contributions). The PPA amended the definition of a qualified rollover contribution to Roth IRAs to include amounts distributed from other qualified plans under §401(a), §457(b), and §403(a) and (b) annuities.

Returned Contributions

  • If an employer chooses to institute an automatic enrollment provision, under certain circumstances an automatically enrolled participant may withdraw from participation by requesting withdrawal from the plan within 90 days of the first contribution. The normal penalty for early withdrawal (10% tax) would not be applicable to these withdrawals.

While some of the PPA changes are mandatory, a number of them are discretionary. Employers that sponsor DC plans need to review their plan documents to determine which, if any, of the mandatory changes are applicable and have their plan documents updated accordingly.  Additionally, employers should assess the discretionary provisions of the PPA to determine whether they wish to implement any of the allowed changes.  Benefits counsel can assist you by detailing the allowed and mandatory changes, reviewing plan documents to determine which apply to your specific situation, and preparing any necessary amendments to the plan.  Please contact our office for more information.

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