Employee Benefits and Executive Compensation

Employers of all kinds – public and private entities, governmental employers, and tax-exempt organizations – rely on Krieg DeVault for customized employee benefit and executive compensation solutions. We also frequently represent plan trustees, third-party administrators, and benefit consultants, including those involved with all types of retirement and welfare plans. Our lawyers include Certified Employee Benefits Specialists and former benefit consultants. We understand the legal and practical issues involved in complex benefit plans, from design and implementation to ongoing administration and plan audits, both internal and initiated by the Internal Revenue Service (IRS) or Department of Labor (DOL). We also work closely with employers to help them contain benefit costs, particularly as they relate to health care. Because we work with all types of employers and plans, we can spot potential problems in employee benefits and executive compensation programs and develop solutions. We strive to assist our employers in avoiding rather than correcting problems. We do this through due diligence during merger and acquisition activities, counseling clients on their fiduciary obligations, and helping to document processes. When a problem does arise, we have lawyers experienced in handling ERISA litigation and governmental audits and penalty assessments. Our compliance team works with employers to correct plan defects and administrative errors. Our lawyers also identify innovative techniques to meet the deferred incentive and equity-based compensation needs of business owners and executives.

Related Professionals

Practice Contact

Alexander L. Mounts

Partner
amounts@kdlegal.com
p: 317-238-6335
f: 317-636-1507

Focus Areas

Tax-Qualified Retirement Plans

Design and implementation of plan and trust
Plan and trust documentation, including procedures and forms
IRS determination letter requests
Client updates on legislative and regulatory changes that affect plans
IRS, ERISA and state law compliance, self-audit and assistance in correcting plan document and operational failures
Controlled group or affiliated service group analysis
Advice on fiduciary issues including
Advice and correction of
Review of investment policy statements
Review and negotiation of service provider service agreements
Advice concerning the reasonableness of plan fees
DOL audit advice and assistance
DOL Voluntary Fiduciary Correction program assistance (VFC)
DOL Delinquent Filer Voluntary Correction program filings (DFVC)
IRS audit advice and assistance
IRS Employee Plans Compliance Resolution System program (EPCRS) filings
IRS Voluntary Compliance Program filings (VCP)
IRS Self-Correction of Operational Failures (SCP) assistance and documentation
Plan termination - assistance and government filings (IRS and PBGC)
DOL reporting and disclosure requirements compliance assistance
Form 5500 preparation and filing
Determination of partial plan termination and impact on plan
Freeze plans -
Mergers and spin-offs of plans
Assistance with benefits issues associated with mergers and acquisitions
ERISA litigation
Private letter ruling requests
Technical advice memorandum requests
Types of Plans
- Defined Benefit Plans
  - Traditional
  - Cash balance
  - Hybrid
  - Retiree medical accounts (401(h))
- Defined Contribution Plans
  - Profit sharing
  - 401(k)
  - Employee Stock Ownership Plans (ESOP)
  - Combination 401(k)/ESOP (KSOP)
  - Cross-tested plans
  - Target
  - Money purchase
- Multiemployer plans
- Multiple employer plans
- Church plans
- Government plans
- Taft-Hartley

Health & Welfare Plans

Plan documentation
ERISA and state law compliance issues
Controlled or affiliated service group analysis
Advice on fiduciary issues including
HIPAA privacy and security compliance
COBRA administration and compliance
DOL audit advice and assistance
Plan termination
DOL reporting and disclosure requirements
Form 5500 preparation and filing
Review and negotiation of service provider service agreements
Advice concerning the reasonableness of plan fees
Assistance with benefits issues associated with mergers and acquisitions
ERISA litigation
Advice on onsite medical facilities
Types of Plans
- Self-funded and insured health plan arrangements
- Section 125 cafeteria plans
- Multiple Employer Welfare Arrangements (MEWAs)
- Multiemployer (Taft-Hartley) plans
- Church plans
- Government plans
- VEBAs and other funding arrangements
- Life and disability plans
- Retiree plans
- Adoption assistance plans
- Qualified transportation plans
- Educational assistance plans
- Wellness plans

ERISA Litigation

Federal and state trial and appellate court litigation
Litigation, arbitration and mediation services
Pre-suit claim resolution
Administrative proceedings
Representation of plaintiffs or defendants
Claims for benefits
Breaches of ERISA fiduciary duties
Reporting and disclosure violations
Collection of delinquent contributions
MEPPA withdrawal liability claims
Review of ERISA fiduciary liability insurance policies
Processing of notice of claim with liability insurer
Malpractice claims against plan service providers
Review of service provider contracts

Employee Stock Ownership Plans

Multi-Employer

Board of trustee representation
Compliance with all applicable federal and state laws
Attendance at trustee meetings
Collective contributions owed to fund
Collective MEPPA withdrawal liabilities on behalf of fund
Claims for benefits (during administrative, appeal and litigation stages)
Defense of breach of fiduciary duties allegations against plan fiduciaries
Subrogation against third parties
DOL/IRS audits or examinations
Correction of operational or document failures
Legal opinions
Development and documentation of administrative policies and procedures (QDROs, IPSs, RFPs, employer audits, etc.)
Types of Plans
- Pension plans
- Health & welfare plans

Tax Exempt and Governmental Plans

Design and implementation of plan
Plan documentation
Interpretation of statutes or other governing documents
Controlled or affiliated service group analysis
Advice on fiduciary issues including
Review of investment policy statements
Review and negotiation of service provider service agreements
IRS determination letter requests
IRS and state law compliance self-audit and assistance in correcting plan document and operational failures
IRS audit advice and assistance
IRS Employee Plans Compliance Resolution System program (EPCRS) filings
IRS Voluntary Compliance Program filings (VCP)
IRS Self-Correction of operational failures (SCP) assistance and documentation
Determination of partial plan termination and impact on plan
Freeze plans -
Mergers and spin-offs of plans
Assistance with benefits issues associated with mergers and acquisitions
Plan termination - assistance and government filings (IRS and PBGC)
Private letter ruling requests
Technical advice memorandum requests
Guidance on investment authority of appointed officials with respect to plans
Guidance and legal opinions on the responsibilities of appointed and elected officials with respect to employee benefits
Additional Services for Tax-Exempt Employers
Types of Plans
- Defined Benefit Plans
  - Traditional
  - Cash balance
  - Hybrid
  - Retiree medical accounts (401(h))
- Defined Contribution Plans
  - Profit sharing plans and 401(k) plans
  - Money purchase plans
  - Target plans
- Retiree plans
- Leave conversion plans
- Internal Revenue Code Section 403(b) plans
- IRC 457(b) and 457(f) plans
- Multi-Employer plans
- Multiple employer plans
- Church plans
- Governmental plans

Executive and Incentive Compensation

Equity-based plans
Industry-unique services
Not-for-profit entities
ESOP companies
Financial Institutions
Designing, drafting, amending and terminating plans and agreements
Negotiation of plans and agreements
Consulting
- Plan design
- Legal considerations
- Income tax considerations
- Tax reporting and withholding
- Accounting considerations
- Securities law considerations
Compliance
- Code Section 162(m)
- Code Section 280G
- Code Section 409(p)
- Code Section 409A
- Code Section 457(f)
- Code Section 457A
- ERISA
Governmental Interaction
- IRS audit response
- Private letter rulings
Types of Plans and Agreements
- Executive Agreements
  - Employment agreements
  - Severance agreements
  - Severance pay plans
  - Change in control agreements
  - Retention agreements
  - Golden parachute agreements
  - Perquisites and fringe benefits
- Deferred Compensation Plans
  - Executive and director plans
  - SERPs
  - Excess benefit plans
  - Make-up benefit plans
  - Rabbi trusts
  - COLI/BOLI
- Incentive Compensation Plans
  - Company-wide bonus plans
  - Long and short term incentive plans
  - Phantom stock plans
  - Stock Appreciation Right plans (SARs)
  - Restricted Stock Unit plans (RSUs)
  - Performance share plans
Equity-Based Plans
- Employee Stock Purchase Plans (ESPPs)
- Omnibus equity incentive plans
- Stock option plans (ISOs and NSOs)
- Restricted stock plans
Industry-Unique Services
- Publicly-Traded Companies
  - Disclosure of executive compensation
  - Compensation committee consultation
Not-For-Profit Entities
- Code Section 457(f) plans
- Excess benefit transactions
- Audit assistance
ESOP Companies
- Code Section 409(p) consulting
Financial Institutions
- TARP compliance
- Legislative monitoring

Mergers and Acquisitions

Due diligence review of parties' employee benefit plans, including:
- Identification of benefits issues to resolve pre-closing
- Correction of operational and plan document issues
- Advice and recommendations regarding plan design, amendment and termination
Drafting of plan amendments
Drafting of benefits-related provisions of letters of intent and acquisition documents
Drafting of buyer and seller covenants
Advice for integrating employees in surviving plans
Plan terminations
Review of nonqualified plan
Identification of COBRA obligations and liabilities
IRS and DOL reporting and disclosure requirements related to transaction

Corrections and Plan Failures

IRS, ERISA and state law compliance self-audit and assistance in correcting plan document and operational failures
IRS audit advice and assistance, including negotiating audit CAP sanctions with IRS
IRS Employee Plans Compliance Resolution System (EPCRS) filings
IRS Voluntary Compliance Program filings (VCP)
IRS Self-Correction of operational failures (SCP) assistance and documentation
DOL audit advice and assistance
DOL Voluntary Fiduciary Correction program assistance (VFC)
DOL Delinquent Filer Voluntary Correction program filings (DFVC)
Work with IRS to re-qualify a disqualified plan

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