Employee Benefits Law Report

Public companies should review stock option plans to ensure they qualify for exception to $1 million deduction limit

The IRS and Treasury Department recently issued final regulations under Code Section 162(m) that, as the IRS describes it, “clarifies” stock and equity-based compensation plan drafting issues. Of course, whether something represents a clarification or a substantive change lies in the eye of the beholder (particularly if that beholder is a politician or regulator in need of political cover). In this case, however, the IRS generally is correct to describe the final regulations as clarifications. With respect to stock options and SARs, the new regulations reflect what were widely held opinions in the executive compensation community. With respect to restricted stock units (“RSUs”) and phantom stock granted by privately held companies that become publicly traded, the new regulations could be considered a more substantive change, but the IRS in effect has provided nearly four years’ worth of advanced notice of this change. The good news is that the new regulations should not affect most employers’ stock plans. Still, it would be wise for public companies to perform a review of these plans to confirm whether they qualify for the performance-based exception to the $1 million deduction limit under Code Section 162(m).

Code Section 162(m), generally

As background, Code Section 162(m) limits the deduction that a publicly traded company can take with respect to remuneration paid to its “covered employees”—its CEO and three most highly paid named executive officers (other than the CEO and CFO)—to the extent that such compensation exceeds $1 million. The deduction limit does not apply, however, to qualified performance-based compensation. Publicly traded companies often structure their equity based compensation plans in a manner to qualify the awards under those plans (options, SARs, RSUs, restricted stock, etc.) as performance-based compensation.

Options and SARs

In 2011, the IRS issued proposed regulations that “clarified” that the plan under which options and SARs were granted must specify the maximum number of shares relating to those awards that may be granted to any individual during a specified period. Most practitioners had long counseled their public company clients to put these individual limits in their plans to make sure these awards qualified as performance-based compensation under Code Section 162(m). Some commentators, however, argued that stating an aggregate share limit for all awards should be enough. The IRS rejected this view in the proposed regulations, stating that a per employee limit was necessary to assist a third party in determining the maximum amount of compensation that could be payable to any individual employee during a specified period.

The final regulations formally adopt this view. The one modification is that a plan may specify a maximum number of shares with respect to all types of awards (options, SARs, RSUs, restricted stock, performance shares) that may be granted to an employee during a specified period.

RSUs and phantom stock of private companies that become public

Additionally, the proposed regulations clarified that an existing limited transition period does not apply to grants of RSUs or phantom stock by a company that, at the time the grants are made, is not a publicly traded company in the event that the company later becomes a publicly traded company when the grants are still outstanding. This interpretation reversed a position taken by the IRS in previously issued private letter rulings. The transition period rule generally provides that compensation related to the exercise of stock options or SARs, or the substantial vesting of restricted stock, under a pre-existing plan will not be subject to the $1 million deduction limit for a limited grace period after the company becomes publicly traded. Many practitioners believed that this grace period would apply to phantom stock and RSUs as well, but the proposed regulations said that would not be the case. The final regulations adopt the interpretation of the proposed regulations. Commenters had requested that the relief extend to RSUs and phantom stock, but the IRS did not adopt these recommendations.

Effective dates

The per employee share limits portion of the proposed regulations were effective with respect to options and SARs granted on or after June 24, 2011. The final regulations state that this rule remains effective as of that date. The preamble explains that a transition period for that rule is not necessary because this interpretation did not represent a substantive change in the rules. On the other hand, the interpretation regarding RSUs and phantom stock awarded previously by privately held companies that become public companies will become effective on the date the final regulations are published in the Federal Register.

Again, because the final regulations confirm what the IRS has long been telling us about equity-based compensation awards, most publicly traded companies probably will not see much, if any, impact on their plans. Nevertheless, the publication of the final regulations represents a good opportunity to review these companies to make sure that the awards under their plans still qualify for the performance-based compensation exception to the $1 million deduction limit.

Ninth Circuit decision illustrates importance of clearly designating beneficiaries under a nonqualified plan

In a recent blog, we discussed the importance of clearly defining who is a “participant” in a nonqualified plan and who is a former participant or retiree. A more recent Ninth Circuit decision in E & J Gallo Winery v. Rogers highlights a related issue that faces tax-qualified and nonqualified plans alike—who is the beneficiary? While cases like this may not raise novel issues of law, they highlight a more mundane yet important issue of preparing plan documents clearly and in a manner that is consistent with their administration. Further, the Gallo decision highlights the importance of reminding plan participants to make sure that they have completed beneficiary designation forms and that those forms are up-to-date.

In the case, E & J Gallo Winery filed an interpleader action to determine the proper beneficiary under its Key Executive Profit Sharing Retirement Plan, a nonqualified deferred compensation plan (the “Plan”). Robert Rogers had accrued a benefit under the Plan before he died.  After his death, ambiguity arose as to who was Robert’s designated beneficiary entitled to receive his accrued benefit under the Plan. Michele McKenzie-Rogers, who was married to the deceased at the time of his death, had filed a motion for summary judgment arguing that she was the proper beneficiary under the Plan. The District Court denied this motion and instead held that Mark Rogers, Robert’s son from a prior marriage, was the proper beneficiary. McKenzie-Rogers appealed that decision, and upon hearing that appeal the Ninth Circuit affirmed the District Court’s decision.

The ambiguity arose over a letter that was sent by the Plan sponsor to Robert Rogers in 1988. The third paragraph of that letter explained to him that vesting, payment methods and “all other matters” under the Plan would be determined in accordance with the procedures set forth under Gallo’s tax-qualified plan document. According to McKenzie-Rogers, the “all other matters” language meant that the tax-qualified plan’s beneficiary rules, which paid benefits to the current surviving spouse, should apply to the nonqualified Plan as well. The District Court disagreed, holding that this interpretation was too broad, especially because the fourth paragraph in that letter clearly named Roger’s first wife as primary beneficiary and his son Mark as contingent beneficiary. However, Rogers’ first wife waived her rights as primary beneficiary under the Plan by signing a waiver and release in 1988. As a result of that waiver, the District Court concluded the participant’s son Mark became entitled to the benefits under the Plan as contingent beneficiary. Nothing in the Plan indicated that the participant’s subsequent re-marriage to McKenzie-Rogers canceled his prior beneficiary designations. Moreover, the Plan was exempt from ERISA’s spousal consent requirements (which, if applicable, automatically would have made McKenzie-Rogers the beneficiary when she married Rogers). The Ninth Circuit agreed with this analysis and affirmed the District Court’s decision.

Again, this decision provides two takeaway items for plan sponsors. One is to make sure that the plan document and communications with the participants clearly explain how participants may designate beneficiaries. The other is that plan sponsors should consider periodically sending reminders to participants to make sure that their beneficiary designation forms are up-to-date. Clear documentation and communication can help reduce ambiguity and help sponsors avoid this type of lawsuits in the future.

ERISA damages—two bites off the same apple are impermissible

The United States Court of Appeals for the Sixth Circuit issued an en banc decision in Rochow v. Life Insurance Company of North America on March 5, 2015 that deals with the ability of a participant in a plan covered by ERISA to recover benefits due from that plan while simultaneously pursuing “other appropriate equitable relief” based on that same asserted injury. In a decision likely to be applauded by many plan sponsors, the court’s en banc decision concluded that both forms of recovery are inappropriate when based on the same injury except in limited circumstances—circumstances that were not satisfied in this case.

The facts of the case involve a claim for long term disability benefits filed by Daniel Rochow under a policy issued by Life Insurance Company of North America (“LINA”). After LINA denied that claim and all administrative appeals also were unsuccessful, Rochow filed an action in the United States District Court for the Eastern District of Michigan. That complaint sought to recover benefits due to Rochow under the applicable disability policy under ERISA Section 502(a)(1)(B) and to seek appropriate equitable relief to redress an alleged fiduciary breach under ERISA Section 502(a)(3). Continue Reading

Supreme Court revisits Obamacare

Veteran observers of the United States Supreme Court regularly and wisely advise not to make too much out of the questions asked by the justices during oral argument as a predictor of ultimate outcome.  Having said that, the first reaction of those who follow these oral arguments (often including some of those veteran observers) invariably is an attempt to weigh the likely judicial mindsets of the justices by the questions asked at oral argument (other than for Justice Clarence Thomas, who traditionally does not ask questions at oral arguments).  Why should today be any different?

The Court heard oral argument on Wednesday, March 4 in King v. Burwell, a case that goes to the core functionality of the Affordable Care Act (the “ACA”) by raising the issue whether four words in the body of the ACA (for the curious, those four words as “established by the State”) mean that subsidies payable by the federal government to defray the cost of health care coverage are only available to residents in states that have established their own health care exchanges.  The plaintiffs in the King v. Burwell case argue that subsidies should not be available to residents in states that have not adopted health care exchanges.  Under the ACA, states are not required to establish their own health care exchanges.  If a state chooses not to do so, the federal government is required to assume that responsibility.  Currently, 37 states have opted not to create their own state exchanges (thus relegating residents in those states to the federally-run health care exchange).  While this case does not deal with weighty issues of constitutional law, the stakes nonetheless are huge.  Most studies indicate that millions of Americans who currently have health care coverage (some studies peg that number as high as 9 million people) would lose that coverage if they lost entitlement to the subsidies because they could not afford to pay for coverage on their own.  The resulting loss of such a large number of customers would be expected to cause great havoc in the insurance market. Continue Reading

Expanding the definition of fiduciary under ERISA—déjà vu all over again

The United States Department of Labor (the “DOL”) submitted to the Office of Management and Budget (the “OMB”) a revised version of the “conflict of interest” rule expanding the definition of the term “fiduciary” on Monday, February 23, 2015.  Generally, the OMB has up to 90 days to review rules, although review times can vary considerably.  Subsequent to the OMB review, the proposed rule is published and interested stakeholders are permitted to make comment on the proposed rule.

ERISA imposes certain obligations on persons who act as plan fiduciaries, including the imposition of liability for losses attributable to a failure to meet applicable fiduciary standards.  In that regard, under this standard fiduciary obligations may be imposed on investment advisors that provide investment advice to a plan in return for a fee or other compensation, whether payable directly or indirectly.  The DOL has become concerned over the last several years that the breadth of the current rule is both outdated and inadequate, and that it fails to reach certain investment professionals who provide investment services to plans and individuals with respect to retirement assets (including individual retirement accounts).

The DOL first attempted to revise this fiduciary standard back in 2010 with the publication of a proposal that many observers concluded would have expanded the breadth of the rule with respect to investment professionals.  That proposal ran into considerable headwind, and drew wide-ranging criticism both from the business community (including Wall Street) and from Congress.  Eventually that proposal was withdrawn, perhaps influenced by political considerations as the 2012 presidential campaign drew near.

Like in 2010, this new proposal presumably will aim at expanding the application of fiduciary burdens on persons that provide investment advice.  While the actual language of the new proposal is not scheduled to become public until it is published following OMB’s review, it seems likely to inspire the same wave of opposition that arose in 2010 (even though the political calculations might be different this time around).  As an indication of how political considerations at the White House may have evolved, President Obama took the somewhat unusual step of announcing the filing of the re-proposed rule at the OMB on February 23.  That speech followed closely behind a conference call on February 22 covering the benefits of the re-proposed rule that featured DOL Secretary Tom Perez.  To complete this “full court press,” the White House released both a fact sheet touting the proposed rule and a report from the Council of Economic Advisors that reviews the negative implications of conflicted investment advice.  Many observers thought the White House walked away from these proposals a few years ago in the face of considerable business and political pressure.  Such a tactical retreat seems less likely this time around, at least at the present time, and thus this initiative bears watching.

Who is “participant” in a nonqualified plan? Second Circuit case highlights importance of defined terms

One issue that sometimes arises when drafting a nonqualified plan document (or qualified plan for that matter) is how to define a “participant” in the plan. Typically, a plan will define “participant” broadly to include anyone who has an account balance or an accrued benefit under the plan and who has yet to be paid his or her complete benefit. This broad definition includes both active employees who generally are accruing additional benefits as well as former employees who no longer are accruing benefits but still are entitled to payments under the plan. Sometimes, however, an employer may not think in broad terms and instead want to use the term “participant” interchangeably with “employee.” Although courts typically show a certain measure of deference to employers in how they interpret their plans, a recent Second Circuit decision (Gill v. Bausch & Lomb, 14-1058, 2d Cir. 2014) reminds us that plan administrators should not get too carried away with relying on administrative discretion and should be mindful of the specific terms they use to define a participant.

Case Background

Bausch & Lomb (the “Company”) maintained a nonqualified deferred compensation plan (the “Plan”) that covered three retired executives. The Plan contained a change of control provision, pursuant to which a “participant’s” benefit would be converted to a cash lump-sum and paid within 15 days following a change in control of the Company. The applicable provision expressly referred only to “participants.” This latter point proved to be important because the Plan contained definitions of both “participants” and “retired participants.” In May 2007, a private equity firm acquired all of the outstanding shares of the Company, which triggered the change in control payments under the Plan. After the change in control, the Company’s Compensation Committee instructed the Plan’s trustee not only to provide lump sum payments to active participants but also to discontinue installment and annuity payments to the “retired participants” and instead pay them any remaining benefits in a lump sum as well.

The retired participants cried foul, in part because they alleged that the lump sum payments had actuarial values that were less than the actuarial equivalent of their remaining monthly benefits. They brought suit, alleging that the termination of the monthly benefits and the payment of the reduced lump-sum violated ERISA. The district court held that the Plan prohibited the cancellation of monthly benefits for retirees. The court allowed the retirees to retain the lump-sum payments they previously received and ordered the reinstatement of the monthly benefits to the retired participants, albeit at a lesser amount to reflect the lump sum payment the participants retained. The Second Circuit affirmed.

Interpretation of the Plan’s Defined Terms

The appeals court’s decision relied on the plain language of the Plan. The Company had tried to argue that retired participants should be viewed as a “subset” of participants, and thus subject to the lump sum cash-out provision upon a change in control.  In fact, many employers often view “participants” as covering both active employees as well as former employees or retirees who have not received full payment under the plan. The court rejected the Company’s argument, however, stating that the Plan clearly defined a “participant” as an active employee and a “retired participant” as a retiree. Even if the Company never intended to distinguish active and former employees in this manner, the court concluded it could not ignore the clear text of the Plan. The plain text clearly defined retirees as not being “participants” under the Plan. Because of that, the Company could not cash out their benefits upon a change in control.


The lesson from the case is a straightforward one. It may be easy to think of “participants” interchangeably with employees, but it is important for employers to remember that until a final payment is made under a plan, former employees have rights under a plan too. Consequently, employers should be mindful of how a plan is designed to treat both active and former employees.

Obama administration budget proposals could affect employee benefit programs

The Obama administration recently released its budget proposals for Fiscal Year 2015 and as in past years those proposals contained a number of provisions that would affect employee benefit plans. A helpful explanation of the administration’s proposals can be found in the Administration’s Fiscal Year 2016 Revenue Proposals (sometimes referred to as the “Green Book”), which was issued by the Department of the Treasury.

A brief explanation of provisions contained in the proposed budget that affect employer benefit plans (directly or indirectly) are as follows:

1.    Revisions to child care tax incentives. Effective for taxable years beginning after December 31, 2015, this proposal would increase the child and dependent care credit, and create a larger credit for taxpayers with children under age five. Related to these changes, the proposal would repeal dependent care flexible spending accounts and thus require changes to many employer-sponsored cafeteria plans.

2.    Revisions to Tax Credit to Qualified Small Employers for Non-Elective Contributions to Health Insurance. The Affordable Care Act created a tax credit to help small employers provide health insurance for employees and their families. Without going into the mechanics of that credit, the proposal would expand the group of employers eligible for the credit to include employers with up to 50 full-time equivalent employees and would begin the phase-out of the credit at 20 full-time equivalent employees. In addition, the proposal would change the coordination of the phase-outs based on average wage and the number of employees so as to provide a more gradual combined phase-out. The proposal also would eliminate the requirement that an employer make a uniform contribution on behalf of each employee (although nondiscrimination laws still will apply). These proposals would be effective for taxable years beginning after December 31, 2014.

3.    Automatic Enrollment in IRA’s (Including Small Employer Tax Credit), Increase Tax Credit for Small Employer Plan Start-Up Costs, and Provide Additional Tax Credit for Small Employer Plans Newly Offering Auto-Enrollment. The proposal would require employers in business for at least two years that have more than ten employees but do not sponsor a qualified retirement plan, SEP, or SIMPLE for their employees to offer an automatic IRA option to those employees, under which regular contributions would be made to an IRA on a payroll-deduction basis. However, if the qualified plan excluded from eligibility a portion of the employer’s work force or a class of employees such as all employees of a subsidiary or division, then the employer would be required to offer the automatic IRA option to those excluded employees. An opt-out feature would be available to employees. Employees could choose either a traditional IRA or a Roth IRA, with Roth being the default.

Contributions by employees to automatic IRAs would qualify for the saver’s credit to the extent the contributor and the contributions otherwise qualified. Small employers (those that have no more than 100 employees) that offer an automatic IRA arrangement could claim a temporary non-refundable tax credit up to $1,000 per year for three years, and they would be entitled to an additional non-refundable credit of $25 per enrolled employee up to $250 per year for six years.

To encourage employers not currently sponsoring a qualified retirement plan, SEP, or SIMPLE to do so, the non-refundable “start-up costs” tax credit for a small employer that adopts a new qualified retirement plan, SEP, or SIMPLE would be tripled from the current maximum of $500 per year for three years to a maximum of $1,500 per year for three years and extended to four years (rather than three) for any employer that adopts a new qualified retirement plan, SEP, or SIMPLE during the three years beginning when it first offers (or first is required to offer) an automatic IRA arrangement. Finally, small employers would be allowed a credit of $500 per year for up to three years for new plans that include auto enrollment (which would be in addition to the “start-up costs” credit referenced just above). Small employers also would be allowed a credit of $500 per year for up to three years if they added auto enrollment as a feature to an existing plan.

These proposals would become effective after December 31, 2016.

4.    Expand Penalty-Free Withdrawals for Long-Term Unemployed. This proposal would expand the exception from the 10-percent additional tax to cover certain distributions to long-term unemployed individuals from IRAs and from 401(k) or other tax-qualified defined contribution plans. An individual would be eligible for this expanded exception with respect to distributions if (1) the individual has been unemployed for more than 26 weeks by reason of a separation from employment and has received unemployment compensation for that period (or, if less, for the maximum period for which unemployment compensation is available to the individual), (2) the distribution is made during the taxable year in which the unemployment compensation is paid or in the succeeding taxable year, and (3) the aggregate of all such distributions does not exceed the annual limits described below.

To be eligible for the exception, the aggregate of all such distributions received by an eligible individual from IRAs with respect to the separation from employment generally may not exceed half of the aggregate fair market value of the individual’s IRA and the aggregate of all such distributions received by the eligible individual from 401(k) or other tax-qualified defined contributions plans with respect to the separation from employment may not exceed half of the aggregate fair market value of the individual’s non-forfeitable accrued benefits under those plans as of the date of the first distribution. A special rule exempts the first $10,000 of otherwise eligible distributions (even if that is greater than half of the aggregate fair market value of the individual’s IRAs or non-forfeitable defined contribution plan benefits). Eligible distributions with respect to any separation from employment would be limited to a maximum of $50,000 per year during each of the two years when distributions would be permitted under this exception (for a total of $100,000 with respect to any single period of long-term unemployment).

This proposal would apply to eligible distributions occurring after December 31, 2015.

5.     Require Retirement Plans to Allow Long-Term Part-Time Workers to Participate. This proposal would require 401(k) plans to make employees who have worked at least 500 hours per year for at least three consecutive years eligible to make salary reduction contributions. This proposal would not apply to the eligibility to receive employer contributions, including employer matching contributions. The proposal also would require a plan to credit, for each year in which such an employee worked at least 500 hours, a year of service for purposes of vesting in any employer contributions. With respect to employees newly covered under the proposed change, employers would receive nondiscrimination testing relief, including permission to exclude these employees from top-heavy vesting and top-heavy benefit requirements. This proposal would apply to plan years beginning after December 31, 2015.

6.     Facilitate Annuity Portability. A section 401(k) plan generally cannot distribute amounts attributable to an employee’s elective contributions before (a) the employee’s death, disability, severance from employment, attainment of age 59½, or hardship or (b) termination of the plan. In addition, and subject to certain exceptions, distributions from a qualified retirement plan are subject to a 10-percent withdrawal penalty. The proposal would permit a plan to allow participants to take a distribution of a lifetime income investment through a direct rollover to an IRA or other retirement plan if the annuity investment no longer can be held under the plan, without regard to whether another event permitting a distribution has occurred. Any such distribution would not be subject to the 10-percent withdrawal penalty. This proposal would be effective for plan years beginning after December 31, 2015.

7.     Simplify Minimum Required Distributions Rules. The proposal would exempt an individual from the minimum required distribution rules if the aggregate value of the individual’s IRA and tax-favored retirement plan accumulations does not exceed $100,000 (indexed for inflation after 2016). For this purpose, benefits under qualified defined benefit pension plans that have already begun to be paid in life annuity form would be excluded in determining the dollar amount of the accumulations. The minimum required distribution rules would phase in ratably for individuals with aggregate retirement benefits between $100,000 and $110,000. This proposal would be effective for taxpayers attaining age 70½ on or after December 31, 2015 and for taxpayers who die on or after December 31, 2015 before attaining age 70½.

8.     Allow All Inherited Plan and IRA Balances to be Rolled over Within 60 Days. The proposal would expand the options available to a surviving non-spouse beneficiary under a tax-favored employer retirement plan or IRA for moving inherited plan or IRA assets to a non-spousal inherited IRA by allowing 60-day rollovers of such assets. This treatment would be available only if the beneficiary informs the new IRA provider that the IRA is being established as an inherited IRA. This proposal would be effective for distributions made after December 31, 2015.

9.     Require Non-Spouse Beneficiaries of Deceased IRA Owners and Retirement Plan Participants to Take Inherited Distributions Over No More than Five Years. Under the proposal, non-spouse beneficiaries with respect to retirement plans and IRAs generally would be required to take distributions over no more than five years. Exceptions would be provided for certain eligible beneficiaries, for whom distributions would be allowed over the life or life expectancy of the beneficiary beginning in the year following the year of the death of the participant or owner. Special rules would apply to distributions to children who have not reached the age of majority. Any balance remaining after the death of a beneficiary (including any beneficiary excepted from the five-year rule or a spouse beneficiary) would be required to be distributed by the end of the calendar year that includes the fifth anniversary of the beneficiary’s death. The proposal would be effective for distributions with respect to plan participants or IRA owners who die after December 31, 2015. The requirement that any balance remaining after the death of a beneficiary be distributed by the end of the calendar year that includes the fifth anniversary of the beneficiary’s death would apply to participants or IRA owners who die before January 1, 2015, but only if the beneficiary dies after December 31, 2015.

10.     Limit the Total Accrual of Tax-Favored Retirement Benefits. The proposal would prohibit any taxpayer who has accumulated amounts within the tax-favored retirement system (including IRAs, section 401(a) plans, section 403(b) plans, and funded section 457(b) arrangements maintained by governmental entities) in excess of the amount necessary to provide the maximum annuity permitted for a tax-qualified defined benefit plan under current law (currently $210,000) generally would be prohibited from making additional contributions or receiving additional accruals under any of those arrangements. Plan sponsors and IRA trustees would be obligated to report each participant’s account balance as of the end of the year as well as the amount of any contribution to that account for the plan year. If a taxpayer reached the maximum permitted accumulation, no further contributions or accruals would be permitted, but the taxpayer’s account balance could continue to grow with investment earnings and gains. The proposal would be effective with respect to contributions and accruals for taxable years beginning after December 31, 2015.

11.     Limit Roth Conversions to Pre-tax Dollars. The proposal would permit amounts held in a traditional IRA to be converted to a Roth IRA (or rolled over from a traditional IRA to a Roth IRA) only to the extent a distribution of those amounts would be includable in income if they were not so rolled over. Accordingly, after-tax amounts held in a traditional IRA could not be converted to Roth amounts. A similar rule would apply to eligible retirement plans. This proposal would apply to distributions occurring after December 31, 2015.

12.     Eliminate Deduction for Dividends on Stock of Publicly-Traded Corporations Held in Employee Stock Ownership Plans. The proposal would repeal the deduction currently available for dividends paid with respect to employer stock held by an ESOP sponsored by a publicly traded corporation. Rules allowing for immediate payment of an applicable dividend and permitting the use of an applicable dividend to repay loans used to purchase the stock of the publicly traded corporation would continue to apply. This proposal would apply to dividends and distributions that are paid after the date of enactment.

13.     Repeal Exclusion of Net Unrealized Appreciation in Employer Securities. The proposal would repeal the exclusion of net unrealized appreciation in employer stock for participants in tax-qualified retirement plans who have not yet attained age 50 as of December 31, 2015. Participants who have attained age 50 on or before December 31, 2015 would not be affected by the proposal. The proposal would apply to distributions made after December 31, 2015.

14.     Require Form W-2 Reporting for Employer Contributions to Defined Contribution Plans. The proposal would require employers to report the amounts contributed to an employee’s accounts under a defined contribution plan on the employee’s Form W-2. This proposal would be effective for information returns due for calendar years beginning after December 31, 2015.

15.     Increase Certainty with Respect to Worker Classification. For both tax and nontax purposes, workers must be classified into one of two mutually exclusive categories: employees or independent contractors. Worker classification generally is based on a common-law test for determining whether an employment relationship exists. The main determinant is whether the service recipient has the right to control not only the result of the worker’s services but also the means by which the worker accomplishes that result. These determinations directly affect entitlement to employee benefit plan coverage. Under a special provision (section 530 of the Revenue Act of 1978), a service recipient may treat a worker as an independent contractor for Federal employment tax purposes even though the worker actually may be an employee under the common law rules if the service recipient has a reasonable basis for treating the worker as an independent contractor and certain other requirements are met. If a service recipient meets these requirements, then the IRS is prohibited from reclassifying the workers as employees. The special provision also prohibits the IRS from issuing generally applicable guidance addressing the proper classification of workers.

The proposal would permit the IRS to require prospective reclassification of workers who currently are misclassified and whose reclassification has been prohibited under current law. The Department of the Treasury and the IRS also would be permitted to issue generally applicable guidance on the proper classification of workers under common law standards. For this purpose, Treasury and the IRS would be directed to issue guidance interpreting common law in a neutral manner, and would be expected to develop guidance that would provide safe harbors and/or rebuttable presumptions. Service recipients would be required to give notice to independent contractors, when they first begin performing services for the service recipient, that explains how they will be classified and the consequences thereof, e.g., tax implications, workers’ compensation implications, wage and hour implications. The IRS would be permitted to disclose to the Department of Labor information about service recipients whose workers are reclassified.

This proposal would be effective upon enactment, but prospective reclassification of those covered by the current special provision would not be effective until the first calendar year beginning at least one year after date of enactment. The transition period could be up to two years for workers with existing written contracts establishing their status.

At this point it is difficult to predict whether any of these proposals, many of which are not new, will become law. As in previous years, the Obama administration’s budget proposals were labeled “dead on arrival” by the Republican-controlled Congress (or perhaps even more appropriately “dead even before arrival”). While uncertain, some of these proposals could find their way into a compromise package that ultimately might be negotiated, so some attention is warranted.

The Supreme Court unanimously says changes to retiree medical coverage a matter of contract analysis—but with a mild twist

In what perhaps can be best described as a win for traditional contract analysis, the United States Supreme Court (the “Court”) issued an opinion on January 25, 2015 in M&G Polymers USA, LLC, et al. v. Tackett et al, that may permit M&G Polymers USA, a chemical company, to force its retirees to help pay for the cost of retiree medical coverage. While technically a unanimous decision, the Court’s opinion , which was authored by Justice Clarence Thomas, seems to prefer a stricter standard for this sort of contract analysis than what is set forth in a concurring opinion authored by Justice Ruth Bader Ginsburg (and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, the other three members of the so-called liberal wing of the Court).

This case relates to the Point Pleasant Polyester Plant in Apple Grove, West Virginia, which was purchased by M&G Polymers in 2000. At the time of that purchase, M&G Polymers entered into a collective bargaining agreement and a related pension and insurance agreement that extended retiree health care coverage to retirees at the plant, many of whom retired before M&G Polymers had bought the plant. Certain retirees who were eligible to receive a benefit under an applicable pension plan (while not clear in the Court’s opinion, the pension plan may have been a multiemployer pension plan) and whose accumulated number of years of age and service equaled or exceeded a specified number were entitled to retiree health care coverage completely paid for by the company. While the collective bargaining agreements were silent as to whether changes in the retiree health care coverage were permissible (silence on that question is not that unusual), the collective bargaining agreements themselves were subject to renegotiation every three years. In December, 2006, M&G Polymers announced that going forward it would begin to charge retirees for a portion of the cost of retiree health care coverage. The retirees responded by filing a court challenge to this decision—alleging that the decision to charge for retiree medical coverage constituted a violation of the applicable collective bargaining agreements. In essence, the retirees, supported by the United Steelworkers union, alleged that they had a vested right for life to no-cost retiree medical coverage.

The challenge by retirees was rejected by the United States District Court for the Southern District of Ohio for failure to state a clam. However, the United States Court of Appeals for the Sixth Circuit later reversed the lower court’s decision based on that appeal court’s previous decision in International Union, United Auto, Aerospace, & Agricultural Implement Workers of America v. Yard-Man, Inc. As applied to ambiguous contract provisions, the approach in Yard-Man looks to the “context” of labor negotiations in general to resolve any ambiguity—and in this case the Court felt that the context of the case established a plausible claim by the retirees. The case was remanded back to the District Court for trial consistent with Yard-Man principles, and that lower court ultimately rendered a decision in favor of the retirees. The Court of Appeals subsequently affirmed the District Court’s decision. The Supreme Court accepted the case on certiorari, and thus this matter landed in the laps of the justices.

The Court took what can only be described as a very dim view of the contextual analysis favored in Yard-Man and its progeny. The Court, both in the opinion of the Court and in the concurrence, rejected the inappropriate tilt that this sort of contextual analysis can create in favor of the retirees. The Court’s opinion goes to considerable length to eviscerate the contextual approach favored in Yard-Man, with Justice Thomas concluding that approach violates ordinary contract interpretation principles by “placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements.” The Court takes a fairly hard line on these issues by concluding that courts generally should not construe ambiguous contract language to create lifetime promises.

The Court remanded the case back to the lower courts for a decision consistent with the opinion written by Justice Thomas. Towards the end of his opinion, Justice Thomas offered a strong hint as to how he thinks the case should be resolved by the lower courts with the admonition “…when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” The concurring opinion, while also dismissive of the notion of a thumb on the scale, is less dismissive of the claims of the retirees and suggests that there might be arguments that could support those claims even under a stricter contractual analysis favored by the Court (Justice Ginsburg suggests the fact that no-cost retiree medical coverage is tied to eligibility for a vested pension benefit could indicate the retiree medical coverage also is vested). It now is up to the lower courts to sort all of this out, and it should be interesting to see how that decision unfolds.

The Supreme Court’s decision in M&G Polymers certainly seems to invalidate the contextual analysis favored by the Sixth Circuit in Yard-Man and its progeny, and that development likely will be cheered by many employers. Having said that, the results of a contractual analysis of ambiguous contract provisions even under the Supreme Court’s stricter approach can be unpredictable, and thus employers may be well served to ensure whenever possible that explicit language providing for the ability to amend (or even terminate) employee benefits coverage be inserted in all contractual arrangements, including collective bargaining agreements, to avoid unpleasant surprises.

2015 is lurking: are your health and welfare and cafeteria plans up-to-date?

The snow falling outside my window right now is a stark reminder that the end of 2014 is right around the corner. With 2015 approaching, employers should take a moment to ensure their health and welfare plans and cafeteria plans are up-to-date. While very few changes are mandatory, there have been several legal developments over the past year that present the opportunity to make design changes to these plans. So curl up by the fire with a hot cup of cocoa and those plan documents and review this list of potential year-end health and welfare and cafeteria plan amendments. And, if changes are required (or prudent), we would recommend working with your insurer, third-party administrator, or legal counsel to ensure that they are appropriately reflected in plan documents.

 Amendments Impacting Health and Welfare Plans and Cafeteria Plans

  • Spouse Definition (Optional): Under the Supreme Court’s recent Windsor decision and subsequent IRS guidance, for federal law purposes, the term “spouse” includes same-sex spouses who are married in a jurisdiction that recognizes same-sex marriage, even if the individual resides in a state that does not recognize such marriages. In other words, if a participant resides in Ohio (which does not recognize same-sex marriage) but married a same-sex spouse in Maryland (which does recognize same-sex marriage), that participant’s spouse would need to be recognized as a “spouse” for federal law purposes.

While neither the IRS nor the Department of Labor have issued guidance specifically requiring amendments to health and welfare plans or cafeteria plans in response to this ruling, the Windsor decision impacts health and welfare and cafeteria plans in a variety of ways, many of which may require amendments. For example, the cost of employer-provided health coverage for same-sex spouses is now excluded from federal income tax and employment tax. So, while this ruling and subsequent guidance do not require plans to offer coverage to same-sex spouses, many employers are using this ruling as an opportunity to extend health coverage to same-sex spouse. And if an employer does offer coverage to same-sex spouses, the Windsor decision would also dictate that covered same-sex spouses be considered qualified beneficiaries entitled to COBRA. Regardless of whether coverage is extended to same-sex spouses, health plan and cafeteria plan amendments may be needed to clarify coverage and eligibility of same-sex spouses and to ensure that plan language matches plan administration.

Keep in mind that this ruling impacts other arrangements as well, including health and dependent care flexible spending accounts, health reimbursement accounts, and health savings accounts. Accordingly, we suggest that all health and welfare arrangements and cafeteria plan arrangements be examined to make sure that they are operated and administered properly in light of the Windsor decision, and to determine if any amendments are appropriate.

  • Eligibility (Optional): If any eligibility changes are being made for the 2015 plan year to comply with the Affordable Care Act employer coverage mandate (e.g., if an average of 30 hours per week will be considered “full-time” for eligibility purposes), amendments to health plans and cafeteria plans may be needed to reflect this change.

Amendments Impacting Cafeteria Plan Features Only

  • $2,500 Health Flexible Spending Account Limit (Required): The Patient Protection and Affordable Care Act imposed a $2,500 limit on pretax employee contributions to health FSAs. The change took effect for plan years beginning on/after January 1, 2013, but IRS guidance allows employers to adopt retroactive amendments to impose the $2,500 limit any time before December 31, 2014. If you haven’t already amended to incorporate this change, now is the time to do so.
  • Health Flexible Spending Account Carryover Rule (Optional): The IRS has issued guidance providing that cafeteria plans may be amended to allow up to $500 of unused health FSA funds remaining at the end of a plan year to be paid or reimbursed to plan participants for qualified medical expenses incurred during the following plan year, provided that the plan does not also incorporate the grace period rule. The amendment must be adopted on or before the last day of the plan year from which amounts may be carried over and may be effective retroactively to the first day of that plan year. A plan may be amended to adopt the carryover provision for a plan year that begins in 2013 at any time on or before the last day of the plan year that begins in 2014.
  • Expanded Change in Status Rules (Optional): The IRS recently issued guidance adding two new change in status rules for cafeteria plans. The first rule allows an employee who has a reduction in service per week to below 30 hours to change a cafeteria plan election if he intends to enroll in another plan that provides minimum essential coverage with the new coverage effective no later than the first day of the second month following the month in which the prior coverage was revoked. The second rules allows an employee who becomes eligible to enroll in a Qualified Health Plan in the Marketplace under a Special or Open Enrollment Period to revoke his or her coverage in the employer group health plan if the employee intends to enroll in a Qualified Health Plan through a Marketplace for new coverage that is effective immediately on the day following the last day that the employer group medical plan is effective. A plan that incorporates these rules must be amended on or before the last day of the plan year in which the elections are allowed. However, a plan may be amended to allow the election changes for a plan year that begins in 2014 at any time on or before the last day of the plan year that begins in 2015.

ERISA plan service provider avoids fiduciary status—what it means for service providers and plan sponsors

A recent Third Circuit decision (Santomenno v. John Hancock, et. al.) has been described as a win for service providers to ERISA plans. It certainly is important because this decision, along with other fairly recent decisions, helps to illustrate when service provider actions become significant enough to make them fiduciaries. A somewhat less discussed point, however, is that this decision also serves as a reminder to plan sponsors about their fiduciary duties and the need to be vigilant in monitoring fees. This blog will provide a brief summary of the decision and the lessons it offers both to service providers to plans and plan sponsors.

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