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Category Archives: Other Articles

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Sixth Circuit finds all anti-retaliation provisions are not created equal, but they are legal landmines. Watch your step

Posted in ERISA Litigation, Other Articles

Sexton v. Panel Processing, Inc. is a recent Sixth Circuit case that highlights that all anti-retaliation provisions are not created equal. And while not equal, there certainly are a lot of them. In fact, there are at least 40 federal anti-retaliation laws, and this does not even include all the various state statutory and common laws that prohibit an employer from taking adverse action against an employee for complaining about all sorts of various conduct. While the result in Sexton was a win for the employer, it should not give employers confidence against retaliation claims; rather, it should serve …


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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.…


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Form 8822-B Responsible Party Deadline for a Few Employee Benefit Plans and Trusts: March 1, 2014

Posted in Other Articles, Tax Issues

What is Form 8822-B, do I need to worry about it with respect to my employee benefit plans and trusts, and do I have a March 1, 2014 deadline? Most benefit plan sponsors/administrators do not have to worry about this, but given that this topic is a little confusing, we thought we would share this explanation.

We need to step back and look at Code Section 6109, which sets forth requirements for taxpayer identification numbers (EINs), which are used for tax reporting purposes. A legal entity, such as a new company, uses a Form SS-4 to request an EIN.  The …


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Audits of Benefit Plan Financials – What They Are and Are Not

Posted in Health and Welfare Plans, Other Articles

Department of Labor investigations of employee benefit plans can be challenging experiences for employers. The time demand can be a significant drain on the business, and the employer needs to be concerned about potential issues the investigator may raise. We believe the best defense is a good offense: we like our clients to take their responsibilities seriously well before an investigation. But employers are sometimes surprised that an investigator asks questions that were not asked by the auditors who conducted independent financial statement audits over the years. As a JD/CPA (double geek) I can tell you this audit is only …


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Affordable Care Act Update: Agencies Extend Reprieve for Employer Pay-or-Play Mandate

Posted in Health Care Reform, Other Articles

Hot off the press are the final regulations for the employer shared responsibility provisions of the Affordable Care Act (more commonly referred to as the “pay-or-play mandate”). In fact, the regulations are so new that they will not actually be published in the Federal Register until tomorrow, February 12. For those of you who are dying to get a first glimpse, a pre-publication version can be found here.

While the regulations are extensive (227 pages), many of the provisions of the proposed regulations have been retained. However, there are a couple important transition rules buried in the final regulations …


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ERISA preemption is complicated – except when it isn’t

Posted in ERISA Fiduciary Compliance, ERISA Litigation, Other Articles

In light of health care reform, we anticipate ERISA preemption cases to start popping up more frequently. Two recent decisions demonstrate that ERISA preemption is complicated, except when it isn’t. In Liberty Mutual Ins. Co.v Donegan, Second Circuit Judge Dennis Jacobs explains the complicated nature of ERISA preemption. This opinion may be helpful for anyone to develop a better understanding of the topic and its history. (Shameless plug alert: you also may want to see the preemption chapter that I edit in ERISA: A Comprehensive Guide.)

Then there is the decision that demonstrates when preemption isn’t complicated.  Seventh


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Join Us for Our Upcoming Webinar: Are You Ready for the New OFCCP Regulations?

Posted in Employment Issues, Other Articles

If you are a federal contractor or subcontractor, you will want to be sure your team is ready to handle its expanded affirmative opportunity requirements. Consider participating in Porter Wright’s upcoming OFCCP regulation webinars, or passing this invitation along to the person responsible for compliance.

Are You Ready for the New OFCCP Regulations?
Wednesday, January 15, 2014
2:15 p.m. EST

The most sweeping changes in federal affirmative action regulations in many years take effect in March 2014. The new regulations expand the affirmative action requirements for covered veterans and disabled persons. For the first time, federal contractors and subcontractors will …


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Supreme Court Takes on Fifth Third Bancorp v. Dudenhoeffer ESOP Dispute

Posted in ERISA Litigation, ESOPs, Other Articles

As I mentioned in my Heimeshoff v. Hartford blog, the U.S. Supreme Court has agreed to review Dudenhoeffer v. Fifth Third Bancorp, now captioned Fifth Third Bancorp v. Dudenhoeffer. The Court granted certiorari on the question as originally framed:

Whether the Sixth Circuit erred by holding that Respondents were not required to plausibly allege in their complaint that the fiduciaries of an employee stock ownership plan (“ESOP”) abused their discretion by remaining invested in employer stock, in order to overcome the presumption that their decision to invest in employer stock was reasonable, as required by [ERISA], …


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Porter Wright Presents Employee Relations Seminar Halloween Edition: Toil and Trouble . . .

Posted in Health Care Reform, Other Articles

Employee Relations Seminar Halloween Edition:
Toil and Trouble…

Please join the labor and employment group of Porter Wright as we address issues that will help keep your workforce out of trouble.

Tuesday, Oct. 8, 2013
7:45 – 8:30 a.m.
Registration and Breakfast
8:30 a.m.- 11:45 a.m.
Program

Lockkeepers Restaurant
8001 Rockside Road
Valley View, OH 44125

Topics Include:

Beware! New Employment Cases That Will Curl Your Hair

Ghost Stories: What Is Happening Now In Workers’ Compensation

Ghosts, Goblins & Ghouls: Data and Devices That Never Stop Giving

Boo! Are You Afraid Of The Deadlines?  Health Care Law Update

There is …


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Temporary Relief From ACA Provisions Extended To Insured Expatriate Plans

Posted in Health Care Reform, Other Articles

The Departments of Labor, Health and Human Services and the Treasury (collectively, the “Departments”) recently issued guidance in the form of a Frequently Asked Question (“FAQ”) that relates to the applicability of the market reform provisions of the Affordable Care Act (the “ACA”) to certain expatriate health care plans. The issuance of this new FAQ indicates that the Departments recognize that expatriate health care plans face special challenges in complying with certain provisions of the ACA, such as the need to reconcile multiple regulatory regimes that may apply to such plans. In addition, the Departments recognize that in some situations …


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Accelerating Incentive Pay From 2013 to 2012 — Executive Compensation Planning for the Fiscal Cliff

Posted in Executive Compensation, Fringe Benefits, Other Articles

Because of the pending fiscal cliff and the possibility of higher tax rates coming in 2013, we have been asked if private company employers should accelerate payments of incentive compensation into 2012, rather than pay them in 2013. This strategy may sound tempting to executives given all of the headlines of the fiscal cliff and potentially higher tax rates on high-wage earners. Still, a lot can happen between now and December 31st. To determine the appropriate tax planning strategy, employers should take the following steps.

  1. Have a Discussion With Key Executives. Your key executives are probably concerned about the

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Fee Disclosures Are Almost Here — What Should Plan Sponsors Do Now?

Posted in ERISA Fiduciary Compliance, Health and Welfare Plans, Other Articles

The quickly approaching deadline for written fee disclosures by covered service providers creates new homework for plan sponsors–in the form of enhanced fiduciary review obligations and a suggested need to review (and/or create) written service agreements.

By now folks who work in the tax-qualified retirement industry are well (and perhaps painfully) aware that the United States Department of Labor (“DOL”) issued final service provider fee disclosure regulations early this year.  As the deadline for service providers to provide the required disclosures (i.e., July 1, 2012) draws close, it seems like an opportune time to consider what plan sponsors …


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The New Year Brings New Notice Requirements for Employers in California

Posted in Other Articles

I wanted to share a recent blog posted on our sister blog – Employer Law Report– that may be of interest to readers of this blog with multi-state operations. As Leigh Anne Benedic details in her blog, several states and local governments have recently considered or enacted “wage theft” legislation to include the criminal and increased civil penalties and fines for employers who underpay their workers. California’s provisions are similar to the provisions that took effect in New York earlier this year. The inclusion of notice requirements in California and New York create additional consequences for the unwary …


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