Employee Benefits & Executive Compensation

Plan design and benefit strategy
Advice regarding the design and implementation of group health, dental, vision, life, disability, accident, hospital indemnity, critical illness, telehealth, EAP, fertility, adoption, surrogacy, wellness, travel assistance, and similar programs, addressing features such as eligibility, waiting periods, dependent coverage, class distinctions, employer subsidies, employee premium contributions, opt-out credits, domestic partner coverage, retiree medical commitments, and coordination with leave policies and severance arrangements.

Cafeteria plan, FSA, HRA, HSA, DCAP, and education reimbursement design
Advice regarding the structure of pre-tax premium payment features, health FSAs, limited-purpose FSAs, dependent care assistance programs, HRAs, excepted benefit HRAs, individual coverage HRAs, HSA-compatible high-deductible health plan arrangements, educational assistance under Code Section 127, and adoption assistance programs under Code Section 137.

Plan documents, amendments, restatements, required notices, and other documents and communications
Drafting and review of wrap plan documents, summary plan descriptions, summaries of material modifications, cafeteria plan documents, HIPAA privacy and security materials, business associate agreements, COBRA notices, ACA-related notices, wellness program disclosures, and vendor-specific certificates or policies.

Cost management and workforce planning
Advice regarding the legal implications of changing employer contributions, adding or eliminating benefit options, modifying eligibility, implementing spousal surcharges or working-spouse exclusions, adopting wellness incentives, restructuring retiree health benefits, integrating benefits after a reduction in force, or coordinating benefits during unpaid leave.

ACA, COBRA, HIPAA, and tax compliance
Advice on employer shared responsibility rules, measurement and stability periods, affordability and minimum value analysis, Forms 1094-C and 1095-C, COBRA qualifying event administration, COBRA notices and premium issues, HIPAA privacy and security requirements, breach response, business associate agreements, cafeteria plan election-change rules, FSA and DCAP substantiation, W-2 reporting, imputed income for domestic partner coverage, and payroll tax treatment of taxable benefits.

Privacy, cybersecurity, and health data governance
Advice regarding HIPAA privacy and security policies, business associate agreements, breach assessment, minimum necessary protocols, firewalling plan information from employment decision-making, cybersecurity diligence, incident response, and coordination among HR, IT, vendors, insurers, and leadership.

Compensation strategy and program architecture
Advice for designing compensation structures that integrate base salary, annual bonuses, sales commissions, retention bonuses, discretionary awards, sign-on bonuses, milestone incentives, long-term incentive awards, severance, and special-purpose arrangements, addressing eligibility rules, performance metrics, payment timing, forfeiture provisions, clawback rights, repayment obligations, restrictive covenant coordination, wage payment rules, and the distinction between discretionary and earned compensation.

Equity plans and grant design
Drafting and review of stock option plans, restricted stock plans, restricted stock unit programs, stock appreciation rights, performance share awards, employee stock purchase programs, phantom equity, profits interests, restricted unit arrangements, and other long-term incentive vehicles.

Executive and non-qualified compensation arrangements
Advice and drafting of employment agreements, offer letters, executive bonus plans, severance plans, change-in-control agreements, retention programs, supplemental executive retirement plans, deferred compensation arrangements, excess benefit plans, director compensation, consulting arrangements, and post-employment advisory roles.

Code Section 409A and deferred compensation compliance
Advice and drafting arrangements to comply with or fit within an exemption from Section 409A, including short-term deferral rules, separation pay exceptions, specified employee delays for public companies, permissible payment events, anti-acceleration restrictions, reimbursement rules, and correction of document or operational defects.

Tax, payroll, and withholding design
Advice regarding federal, state, and local income tax withholding, FICA, FUTA, supplemental wage withholding, imputed income, Form W-2 or Form 1099 reporting, Code Section 83 income inclusion, Section 83(b) elections, option exercise taxation, and equity settlement mechanics.

Corporate governance and approval processes
Assistance with plan resolutions, grant consents, committee charters, delegated authority, equity approval matrices, executive compensation approvals, transaction bonus authorizations, related-party review, director compensation, conflicts protocols, and corporate recordkeeping.

Operational corrections and internal controls
Identification and correction of common compensation errors, including options granted below fair market value, missing board approvals, incorrect vesting schedules, late payroll withholding, omitted taxable income, improper ISO treatment, missed Section 83(b) election reminders, inconsistent commission calculations, undocumented bonus discretion, and deferred compensation payments made at impermissible times.

ERISA and fiduciary issues for non-qualified plans
Assistance with determining ERISA status, preparing plan documents, establishing claims procedures, filing top-hat statements where applicable, preserving unfunded status, coordinating rabbi trust features, and managing participant disputes.

Securities, disclosure, and insider considerations
Coordination of compensation design with securities compliance and investor communications to address securities exemptions, Rule 701, Form S-8 registration for public companies, insider trading policies, trading windows, Rule 10b5-1 plans, tender offer rules, blue sky compliance, beneficial ownership reporting, proxy disclosure, and public company clawback requirements.

Fiduciary governance structure
Creation or refinement of plan committees, charters, delegation resolutions, fiduciary appointment records, meeting calendars, agendas, minutes, conflicts protocols, reporting lines, RFPs, benchmarking, cybersecurity, and data protections.

Fiduciary training
Provide fiduciary training for committee members, HR leaders, finance personnel, and executives covering ERISA fiduciary duties, prohibited transactions, plan-document compliance, delegation, conflicts of interest, minutes, privilege, service provider monitoring, participant communications, cybersecurity, claims administration, and escalation of operational issues.

Vendor management and service provider contracts
Assistance with requests for proposals, service agreements, fiduciary status provisions, indemnification, data security, fee disclosures, service level terms, termination rights, and transition issues when changing recordkeepers, investment managers, third-party administrators, and other service providers for retirement, health and welfare, and compensation plans and programs.

Participant communications and claims
Drafting and/or reviewing summary plan descriptions, summaries of material modifications, claims and appeals procedures, and other participant communications and assistance with response to participant claims and appeals.

Government inquiries, audits, and correction programs
Representation and/or support for employers in IRS examinations, Department of Labor investigations, other government inquires, voluntary correction submissions, delinquent filing corrections, prohibited transaction issues, fiduciary breach allegations, and participant complaint responses.

Fiduciary risk allocation and insurance
Review and counsel on fiduciary liability insurance, ERISA fidelity bond coverage, indemnification provisions, committee member protections, D&O coordination, cyber coverage, and contractual risk allocation.

Litigation-risk mitigation
Assessment and advice to strengthen administrative practices and documented processes to mitigate litigation risk.

Buy-side diligence in business transactions
Review of qualified retirement plans, pension plans, multiemployer plan participation, health and welfare plans, cafeteria plans, severance plans, nonqualified deferred compensation plans, employment agreements, bonus plans, commission plans, equity plans, award agreements, change-in-control arrangements, retention agreements, payroll practices, and related documents and records to identify liabilities that affect valuation, closing conditions, indemnities, purchase price adjustments, and post-closing obligations.

Sell-side preparation in business transactions
Aiding sellers in preparation for diligence by organizing plan documents, SPDs, amendments, service provider contracts, collective bargaining agreements, and related documents and records.

Transaction structure
Analysis of plan sponsorship transfer, employee transfer mechanics, controlled group consequences, successor liability, union obligations, multiemployer plan withdrawal liability, pension funding obligations, 401(k) plan termination or merger strategy, welfare plan continuation, COBRA responsibility, equity award treatment, deferred compensation timing, and payroll tax reporting.

Transaction agreement provisions
Drafting and negotiating employee benefits and compensation representations, covenants, closing conditions, disclosure schedules, indemnities, purchase price adjustments, benefits continuation provisions, employee census requirements, compensation commitments, severance obligations, equity award treatment, retention arrangements, 280G-related provisions, 409A compliance covenants, plan termination covenants, cooperation covenants, and transition services provisions.

Pension and multiemployer plan exposure
Evaluation of defined benefit funding obligations, PBGC considerations, reportable events, plan freezes, pension risk transfer options, collective bargaining commitments, multiemployer plan contribution requirements, withdrawal liability estimates, partial withdrawal risk, controlled group exposure, and successor liability risk.

Executive compensation and equity treatment
Counsel regarding treatment of stock options, restricted stock, RSUs, phantom equity, profits interests, SARs, carried interests, bonus plans, transaction bonuses, retention awards, deferred compensation, severance rights, employment agreements, noncompetition and restrictive covenant agreements, rollover equity, earnouts, change-in-control arrangements, and compliance with Code Sections 409A and 280G.

Post-closing integration and separation
Assistance with harmonizing benefit plans and compensation programs after closing, including 401(k) plan mergers, successor plan eligibility, welfare plan transition, open enrollment communications, COBRA allocation, payroll integration, executive compensation changes, incentive plan redesign, equity conversion, employment agreement amendments, severance plan alignment, union benefit continuation, fiduciary committee restructuring, vendor transitions, and employee communications.

Employee benefit plans
Assistance with bargaining over retirement and health and welfare benefit commitments, as well as addressing issues with multiemployer pension plans and collectively bargaining welfare fund arrangements.

Compensation and severance
Assistance with bargaining over wage schedules, bonus plans, incentive compensation, attendance awards, shift differentials, retention arrangements, change-in-control protection, severance eligibility, release conditions, WARN-related pay, plant closing provisions, and coordination between collectively bargained severance benefits and company-wide severance plans.

Preserving sponsor discretion
Advice and assistance with contract terms to preserve an employer’s authority to make certain changes during a contract term, such as plan contribution rates, vendor changes, wellness programs, network design, prescription drug coverage, retiree medical arrangements, and discretionary bonus or incentive plans.

Coordination with labor counsel, consultants, and finance teams
Assist labor counsel, actuaries, brokers, investment consultants, payroll teams, finance personnel, and HR leadership to evaluate the legal and economic implications of union proposals.