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Employee Benefits Law Report

Reporting on recent trends and developments affecting employee benefits

Health reimbursement accounts failed to satisfy collective bargaining agreement provisions: is the Sixth Circuit handcuffing employers?

Posted in Employment Issues, Health Care Reform

We have a new Sixth Circuit decision regarding “vested” retiree health care benefits that is likely to be of concern to many employers, United Steel, Paper and Forestry, Rubber, Manufacturing Energy, Allied Industrial And Service Workers International Union, AFL-CIO-CLC v. Kelsey-Hayes Company. You may recall that in the last significant Sixth Circuit decision on this topic, Reese v. CNH America LLC, the Court recognized that health care had changed over the years, and concluded that the employer could unilaterally modify a retiree health plan, provided that the modifications were reasonable.  That decision seemed to put the Sixth Circuit more in line with other circuits that had ruled on these issues, and gave employers some relief.  But it appears that relief was short-lived.

Oversimplifying this a bit, the 2003 Kelsey-Hayes collective bargaining agreement provided that retirees would be provided with establish a health insurance plan, “either through a self-insured plan or under a group insurance policy or policies issued by an insurance company . . . .” and “The Company shall contribute the full premium or subscription charge for health care coverages.”  The agreement contained a provision regarding changing benefits, but those changes were required to be made by mutual agreement. Plaintiffs worked for a plant that was shut down in 2006.  In 2012, TRW Automotive, which had purchased Kelsey-Hayes, announced that it was eliminating its traditional group health care plan coverage. It was establishing health reimbursement accounts (“HRAs”). With respect to this group, it made an initial contribution of $15,000 per retiree and spouse, and promised a $4,800 credit for each retiree and spouse for 2013, with no commitment regarding subsequent years. The company retained the right to cease providing retiree coverage.

In Kelsey-Hayes, the Court (in a majority opinion written by Judge Griffin) concluded that the employer did not have the authority to create health reimbursement accounts that it promised to fund for only two years, and to reserve the right to eliminate all coverage thereafter. The Court found TRW liable as a successor for the collective bargaining agreement commitment. In an opinion concurring in part and dissenting in part, Judge Sutton agreed with this much of the of the opinion. The majority opinion further explained that reasonable modifications were only permitted in CNH America because of the text of the collective bargaining agreement and issued a permanent injunction, “requiring a return to the ‘status quo ante.’” Judge Sutton, who had written the CNH America opinion, by the way, disagreed, reminding us that the Court had said:

Retirees, quite understandably, do not want lifetime eligibility for the medical-insurance plan in place on the day of retirement, even if that means they would pay no premiums for it. They want eligibility for up-do-date medical insurance plans, all with access to up-to-date medical procedures and drugs.

Judge Sutton viewed the injunction as improperly ruling that even if the company had agreed to fund the HRAs for life, and even if the individuals obtained better and more flexible coverage, this would not satisfy the company’s obligation. He characterized this case as highlighting “the perils of handcuffing a company to one mode of providing retiree benefits.” This opinion explains that participants were guaranteed access to an individual insurance plan, and provided with a broker to select an insurance package. It appears that the Treasury, DOL and HHS already handcuffed the company from doing this in 2014 and beyond (see, e.g., IRS Notice 2013-54). But does this decision mean that if the company maintains a defined contribution private exchange, it must maintain a standalone insured plan for this group of retirees? Stand-alone retiree plans are excepted from the Patient Protection and Affordable Care Act (“PPACA”), which means the retirees could lose benefits they would have had (such as coverage of preventive care and coverage of dependents to age 26). Further, presuming the stand-alone plan is affordable and provides minimum value, the retirees will be ineligible to purchase, with a premium credit and cost-sharing reduction, an individual exchange policy that might include better benefits under the minimum essential coverage rules. This brings us back to the question: do retirees really want 2006 health care?

In a concurring opinion in Kelsey-Hayes, Judge Merritt opines that the Court is not handcuffing the employer, as the opinion only applies to the present circumstances, and there are many ways circumstances could change in the future. Like implementation of PPACA, perhaps?

Employers are continuously reviewing their employee compensation and benefits costs, and determining how much total cost they are willing and able to bear. Many employers are exploring, or have already made, significant changes regarding health care benefits. In 2018, the 40% nondeductible excise tax (Cadillac tax) is anticipated to hit many plans maintained pursuant to collective bargaining. Determining how those plans will be redesigned to minimize the tax, or how this tax will be funded, is critical. Employers, especially those in the Sixth Circuit, may be handcuffed by collective bargaining agreements and have trouble extending those changes to employees and retirees protected by those agreements. Accordingly, we continue to urge employers to make health care coverage a priority in the collective bargaining process. Employers may not be able to do anything about collective bargaining agreements that were in existence prior to an acquisition (and this is one of the reasons why due diligence is so important), but they may be able to better protect their interests in current negotiations.

“Substantial risk of forfeiture” clarification impacts tax-exempt and governmental employer non-compete arrangements

Posted in Tax-Exempt/Governmental Employers

One of the more interesting (or frustrating, depending on your point of view) things about language is how sometimes, the same word can have multiple meanings. As Michael Jackson once showed us, “Bad” can sometimes mean bad, and sometimes it can mean good. In the executive compensation world, “substantial risk of forfeiture” is a term that can have different meanings, depending on whether Code Section 83, 409A, or 457(f) is defining it. Understanding this concept is important because regardless of the Code Section, the compensation at issue generally does not become taxable to the employee until the substantial risk of forfeiture lapses. It can get confusing trying to determine whether a condition imposes a substantial risk of forfeiture in one Code Section, let alone in three different Code Sections.

We previously blogged about how the IRS and Treasury recently issued final regulations that clarify the definition of substantial risk of forfeiture for purposes of Code Section 83. These blogs, similar to the final regulations, focus mostly on restricted stock grants and certain stock option grants. An important point that has flown somewhat under the radar is that these regulations also could affect tax-exempt and governmental employers who have entered into non-compete arrangements with current and former employees.

That may sound surprising at first, because Code Section 83 does not specifically address tax-exempt organizations. These types of arrangements are governed instead by Code Section 457(f). The regulations under Code Section 457(f) currently state that “substantial risk of forfeiture” is defined in the manner provided under Code Section 83. Consequently, any change or clarification in the Code Section 83 regulations will impact Code Section 457(f). In particular, the Code Section 83 regulations continue to allow certain non-compete arrangements to be considered a valid tax-deferral mechanism.

Where things become confusing is that several years ago, the IRS issued guidance stating that it intends to issue new regulations under Code Section 457(f) that are more consistent with the Code Section 409A regulations. Code Section 409A also has a substantial risk of forfeiture concept. Unlike Code Section 83, the regulations under Code Section 409A state that a non-compete arrangement will not be considered a substantial risk of forfeiture that will defer taxes. Instead, the IRS will disregard any non-compete when determining whether compensation is subject to a substantial risk of forfeiture.

When the IRS issued this guidance, most tax-exempt and governmental employers began to focus more on the Code Section 409A regulations than on the Code Section 83 regulations with respect to their deferred compensation arrangements. Specifically, they made sure that these arrangements contained service or performance-based vesting conditions that would be considered a valid risk of forfeiture that deferred taxes.

We still encourage this practice. Service and performance-based conditions impose a valid substantial risk of forfeiture under Code Section 83 too. It’s also a smart practice to be forward-thinking rather than reactive. Yet, sometimes these types of conditions may not be appropriate. A common example is where an organization wants a current executive to take a step back to allow a successor to take over his or her position, while still being available for consulting if questions arise. Until the IRS issues final regulations under Code Section 457(f), a non-compete, particularly if it is combined with this type of part-time consulting arrangement, could still be a valid tax-deferral mechanism. One caveat is that in order for a non-compete to impose a substantial risk of forfeiture that defers taxation, the facts and circumstances must show that (i) given the employee’s age and employment opportunities, the non-compete imposes a legitimate burden, and (ii) the employer intends to enforce the non-compete.

A common example is the president or executive director of a large non-profit organization. Often times, these executives will be required to satisfy a service condition in order to receive deferred compensation (e.g., remain continuously employed for a period of 5 years). The executive also will be subject to a non-compete agreement that states that as long as the executive is employed at the organization and for a period of time after termination of employment (typically 1-2 years), the executive will not serve as an executive officer or director of a competitor organization within a certain radius of the employer. Failure to abide by these terms will require the executive to repay the deferred compensation amounts to the employer.

In short, the Code Section 457(f) regulations may one day eliminate any tax advantage of using non-compete arrangements. That day is not yet here, and until then, tax-exempt and governmental employers should remember that the Code Section 83 regulations still preserve some flexibility with using non-compete arrangements.

 

Join us April 29 for our Employment Relations Seminar: Keeping Your Workplace Healthy, Wealthy and Wise

Posted in Events, Health Care Reform

 

Join Porter Wright’s Employment Group for our Spring Employment Relations Seminar -Keeping Your Workforce Healthy, Wealthy and Wise – on Tuesday, April 29, 2014 in Cleveland.

Topics include:

Keeping Pace: Learn the Latest in Employment Law presented by Tracey L. Turnbull

De-Stress: Effectively Managing Mental Stress Claims in Workers’ Compensation Cases presented by Fred J. Pompeani

Shaping Up: Getting Your Health Care Reform Plan and Your Workforce in Shape for 2015 presented by Ann M. Caresani

Making Peace: Resolving Workplace Conflict Through An Alternative Dispute Resolution Program presented by Margaret M. Koesel

This program has been submitted for 3.0 hours of continuing legal education credit with the Ohio Supreme Court and 3.0 hours of credit through HRCI.

Register here

There is no charge for this seminar; however, seating is limited.
Please register now.

If you have any questions, please contact Erin Hawk.

Tuesday,
April 29, 2014

7:45 a.m. – 8:30 a.m.
Registration

8:30 a.m. - 11:45 a.m.
Program

Lockkeepers Restaurant
8001 Rockside Road
Valley View, Ohio

 

IRS Safe Harbor for accepting rollover contributions – Revenue Ruling 2014-9 and Form 5310

Posted in Tax Issues

The Form 5310 Application for Determination for Terminating Plan instructions, updated in December 2013, added an odd and time-consuming new requirement, “Submit proof that any rollovers or asset transfers received [during the year of plan termination and five prior plan years] were from a qualified plan or IRA (for example, DL [determination letter] and timely interim amendments).”

The reason we find this instruction odd is that we are not aware of any requirement for a plan administrator to obtain and retain this proof. Treasury Regulation Section 1.401(a)(31)-1, Q&A-14 provides a safe harbor for the reasonable acceptance of a rollover that is later found to be invalid. Under this safe harbor, an invalid rollover would be treated as valid provided the administrator reasonably concluded the rollover was a valid rollover distribution, and distributes the amount with attributable earnings to the participant within a reasonable time of determining that the rollover was actually invalid. This protects the qualified status of the plan. The regulation set forth examples of how an administrator could make a reasonable determination. None of these examples required the administrator to prove the distribution was from a qualified plan or IRA, or to obtain a determination letter and timely interim amendments. So even if the administrator were attempting to rely on the safe harbor with respect to an invalid rollover, which is not what is happening when the employer requests a determination letter, the administrator would not have that type of documentation.

Subsequently, in Revenue Ruling 2014-9, the IRS set forth additional examples about how an administrator could comply with the safe harbor.  In the first example, for a rollover from one qualified plan to another, the administrator simply went to the DOL website to check the most recently filed Form 5500 for the distributing plan.  The administrator confirmed that Code 3C did not appear on Line 8a, as that would have indicated that the plan was not intended to be qualified. In the qualified plan and IRA rollover examples, the administrator receives a check that indicates the qualified plan or IRA distribution is for the benefit of the employee, and an “attached check stub” indicating the source of the funds. Further, the employee provides a certification regarding the taxable nature of the distribution.  In the event the administrator later learns the rollover was invalid, it distributes the amount with attributable earnings to the participant within a reasonable time of such determination.

Keep in mind, these are just examples. The fact that the guidance does not address more modern day scenarios, like wire transfers, does not necessarily mean that an administrator should  demand a check rather than a wire. Further, this guidance merely sets forth a safe harbor, not a requirement.  Finally, we hope the IRS will strike the qualified plan or IRA “proof” requirement in the Form 5310 instructions, but no word on that yet. In any event, we advise plan administrators to establish solid practices for the acceptance of rollover contributions, to help protect the qualified status of their plans.

Substantial risk of forfeiture guidance clarifies when Section 16 short-swing profit liability can defer taxation of equity compensation awards

Posted in Tax Issues

Legend had it at my law school that one day, a lost student walked into a torts class and asked the professor if this class was wills, trusts, and estates. The torts professor replied, “We haven’t gotten that far yet.” A dry sense of humor on the professor’s part? Perhaps. His point, however, was that the law can be a seamless web, with one area of law often having an impact on another. This point often is true with respect to the tax and securities laws.

We blogged previously that the IRS and Treasury issued final regulations under Code Section 83 to “clarify” the definition of “substantial risk of forfeiture” with respect to restricted stock (and other property) grants. One of the clarifications was that transfer restrictions, in and of themselves, do not constitute a substantial risk of forfeiture. For taxation to be deferred on restricted stock grants, the stock must be both non-transferrable and subject to a substantial risk of forfeiture. An example might help illustrate this point. Suppose that a company grants its CEO restricted stock that vests on the fifth anniversary of the date of grant, provided that the CEO has been continuously employed through that date. Also suppose that the CEO satisfies this vesting condition, but on the vesting date, the company’s insider trading policy prohibits the CEO from selling the shares for several months. The CEO would be taxed on the value of the shares on the vesting date, despite the fact that the CEO is unable to sell the shares.

The Code Section 83 regulations, both before and after the clarification, contain an important exception to the non-transferability rule. This exception arises mostly with stock option grants, rather than restricted stock grants, even though restricted stock grants are more often impacted by Code Section 83. That exception is the subject of this blog. Continue Reading

Supreme Court unanimously holds that severance payments generally are subject to FICA taxes

Posted in Executive Compensation, Tax Issues

Clients frequently ask us if severance payments are subject to tax withholding. The answer is that they clearly are subject to income tax withholding, but there has always been some ambiguity about the circumstances in which they are subject to FICA tax withholding. The IRS has always taken the position that severance payments are not subject to FICA tax withholding only when the severance payments are tied to the receipt of unemployment benefits. When the issue arose in litigation, however, the Circuits were split as to whether to side with the IRS, or whether a somewhat broader FICA exception should apply in certain cases involving bankruptcies or reductions in force.  During the past few years, many employers and employees filed refund claims for FICA taxes withheld on severance payments, with the hope that the Supreme Court would issue a decision in favor of the broader exception.

Last week, the U.S. Supreme Court unanimously held in United States v. Quality Stores, Inc., that the IRS position was correct, dashing the hopes of any refunds.  As such, severance payments generally are subject to FICA taxes. The only exception that the Court preserved was for supplemental unemployment benefit (“SUB”) plans under Code Section 501(c)(17), where severance benefits are tied to the receipt of unemployment benefits. For example, suppose that the employer wants to continue to allow a former employee to receive base salary for period of time after severance. Also suppose that a former employee had been earning $700 a week from the employer, and the former employee now receives unemployment benefits are $300 a week. Under a SUB plan, the former employer would pay $400 a week to make the former employee whole.

The Court also noted that even the limited exception regarding unemployment benefits appeared to be inconsistent with the plain meaning of the tax statutes. As such, we would not be surprised if the IRS later reverses its own position to eliminate this exception and require FICA tax withholding on all severance payments, even when they are tied to unemployment benefits.

For now, there is no immediate action for employers to take. As we said previously, if an employer has filed claims for refunds of FICA taxes withheld on prior severance payment, the IRS almost certainly will deny those claims. Otherwise, the case serves as a reminder that employers need to be mindful of the tax and benefits issues surrounding their former employees.

NLRB classification of athletes as employees highlights a health care reform land mine

Posted in Employment Issues, Health Care Reform

Employers have always been concerned about the potential for worker reclassification, but health care reform and a recent NLRB decision take this issue to an entirely new level.  “Large” employers who offer coverage will be required to offer coverage to “all” of their “full-time workers,” defined as at least 95% of employees working 30 hours per week. An employer that offers coverage to only 94% of its full-time employees, and has one employee who enrolled on an exchange with a premium credit, will be subject to annualized penalties of $2,000 per full-time employee, less the first 30 employees. This draconian penalty applies to all employees, not just the percentage excluded from the offer.

Consider that the NLRB just shocked the college sector with its ruling that Northwestern University students with football scholarships are employees for purposes of the National Labor Relations Act. The immediate result is that if the players with scholarships organize themselves with a labor organization, they can collectively bargain for themselves against Northwestern University. (Of course, we presume there will be further legal challenges.) But think about what this means in the context of taxes and health care reform. Will the IRS deem the students to be employees, liable for taxes, and full-time employees of Northwestern University for purposes of the health care reform employer mandate?

Northwestern University’s website reports that the University has 3,820 full-time faculty and 6,000 full-time staff. Let’s consider a hypothetical: on January 1, 2016, the IRS reclassifies enough students and independent contractors as “full-time employees” so as to cause the University to miss the 95% mark, and at least one employee used a premium credit to purchase coverage on an exchange. It appears that after paying all the health care plan costs, the University could also be liable for a penalty in the neighborhood of $20 million, per year.

Continue Reading

Tax-Exempt Organizations: understanding the proposed Tax Reform Act of 2014’s penalties on excessive executive compensation

Posted in Executive Compensation, Other Articles, Tax-Exempt/Governmental Employers

Recently, we published an article in Bloomberg BNA’s Pension & Benefits DailyTM that provides context for understanding the proposed Tax Reform Act of 2014’s penalties on excessive executive compensation for tax-exempt organizations and offers our thoughts about planning opportunities for the future. This is available for our readers at this link.

Protected health information and health care plan design

Posted in Employment Issues, Health and Welfare Plans

On our sister blog — Employer Law Report – our partner Brian Hall wrote about the likely availability of an Alzheimer’s blood test, and the impact of new genetic testing in the context of employer sponsored group health care plans and wellness programs. Brian spoke of the “imaginary line” that separates protected health information from human resources decision-makers, supervisors and managers, and mentioned a plethora of employee protections, including HIPAA, GINA, ADA, and ERISA Section 510. The Patient Protection and Affordable Care Act also added another set of employee protections. Each of these laws sets forth different standards for burden of proof, and defense, and case law has been developing around these standards.

An employer that is in the process of redesigning its health care plans and realigning its workforce to comply with the 2015 pay or play employer mandate needs to keep in mind that compliance with all these other protective laws is important, too. An employee who is disciplined or reassigned, who has an hours reduction, or who has been terminated from employment, now has a lengthy list of potential discrimination claims. Further, an assortment of federal government agencies now has additional enforcement tools.  Therefore, we encourage employers maintaining health care plans to take a time out to consider how they will defend against this new breed of claims. Taking proactive steps, like shoring up that imaginary line between the health care plan and employment decisions makers if at all possible, will reduce the time and expense otherwise required to defend against these claims.

Below is Brian’s post for your reference:

Brian D. Hall

Recent media accounts (e.g. this report  — Blood Test Predicts Alzheimer’s Disease – by CNN ) suggest that medical researchers have discovered a blood test that will help identify whether people are likely to develop Alzheimer’s Disease in their lifetime with 90% accuracy. So far, the test only has been conducted on individuals who are over 70 years old, but researchers will begin seeing whether these promising results can be obtained on people in their 40’s and 50’s. These research findings are obviously welcome news, but raise many questions assuming the test becomes more universally available. Not the least of these questions will be whether people really will want to know their fate. Any number of factors will likely play into any one person’s decision, but whether obtaining the test will have any impact on his or her employment should not be one of them.

Though it may be a long ways down the road before the Alzheimer’s blood test becomes realistic for employees in the prime of their working years, other medical research advances permitting individuals to learn their medical fate may have a more immediate impact. Indeed, at least one company already offers direct to consumer genetic testing and interpretation services. Should an employer learn of this kind of information as it relates to one of its employees, it could be exposed to potential liability if the information were to ever use it for employment purposes. While I’m convinced that the vast majority of employers would never actually make an employment decision based upon their employees’ genetic or protected health information, mere access to the information will put the employer in the position of having to prove that their decisions were not based on such information. Fortunately, for both employee and employer, HIPAA would prevent the transfer of any protected health information held by the employer’s group health plan to its human resources decision-makers or supervisors and managers. Should information cross this imaginary line, however, the employer faces potential liability not only under HIPAA but under a variety of other federal laws such as GINA (prohibiting the use of genetic information in making employment decisions), ERISA §510 (prohibiting employers from discharging or discriminating against plan participants for the purpose of interfering with the attainment of any right to which the participants may become entitled under a plan) and the ADA (prohibiting discrimination against qualified individuals with a disability.)

As medical advances continue to provide us with more information about our health, it will become increasingly more important for employers to ensure that people who make decisions regarding individuals’ employment do not have access to the individual’s health information. Employers should resist any temptation they may have to access any protected health information held by their group health plan and should ensure that all medical information held by them as employers is segregated from employee personnel files. This definitely is one of those situations where the less known the better.

“Substantial Risk of Forfeiture” Clarification Impacts Restricted Property (Stock) Grants

Posted in Tax Issues

As complex as the Internal Revenue Code is, many people still assume that the rules contain a great deal of specificity and precision, perhaps because of the mathematical nature of calculating taxes. They often are surprised to learn that the Code leaves a lot of room for discretion and subjectivity. A great example of this subjectivity is Code Section 83’s regulations governing the taxation of restricted stock (and other property). The underlying stock subject to these grants generally does not become taxable to the employee until the stock no longer is subject to a “substantial risk of forfeiture.” As you might guess, whether a risk is “substantial” can be quite a subjective determination.

In that backdrop, the IRS and Treasury recently issued final regulations that clarify the definition of substantial risk of forfeiture for purposes of Code Section 83. The final regulations will have the most direct impact on employers who have granted awards of restricted stock or other restricted property on or after January 1, 2013. That is because the regulations stress the need for these agreements to contain a service or performance-based vesting condition that is not substantially certain to be satisfied. The retroactive effective date of may seem strange at first. It is the same effective date that the IRS provided in proposed regulations from May 2012. The good news is that the final regulations generally offer “clarifications” of the former regulations rather than new guidance. Still, it is important that affected employers review their restricted stock arrangements and determine whether they should take additional action.  Continue Reading