The federal government has been encouraging employers to adopt best practices to address both external and internal threats to critical business information and infrastructure. These best practices have included an important human resources element, including policies and programs covering current and former employees.
For example, the Obama Administration opened its initiative to combat trade secret theft with a report that listed human resources policies as one of four areas in which employers need to adopt best practices. Similarly, the Framework for Improving Critical Infrastructure Cybersecurity developed by the National Institute of Standards and Technology and the recently published Best Practices for Victim Response and Reporting of Cyber Incidents developed by the U.S. Department of Justice include multiple recommendations regarding human resources policies needed to manage cybersecurity risks. As we have noted before, employees can be among the best protectors of employers’ critical information, or its worst threat.
White House budget proposal released earlier this year would eliminate several methods used by certain taxpayers to convert after-tax contributions into Roth amounts. Although such a change would likely require congressional action, taxpayers who use or are considering these methods should be mindful of the proposed change.
Although executive compensation has been under significant scrutiny for many years, directors’ compensation has flown somewhat under the radar. That may be about to change: in Calma v. Templeton, a Delaware court recently held that the level of compensation granted to non-employee directors should be reviewed under the “entire fairness” standard rather than under the more lenient “business judgment” standard. The court concluded that the stricter standard was appropriate because:
- the directors had a conflict of interest when they were deciding whether to award themselves any equity compensation; and
- the company’s shareholders did not “ratify” the directors’ equity awards when they approved the plan under which the awards were granted, since the plan did not include “meaningful limits” on the potential awards.
The classification of workers as employees or independent contractors is an ongoing headache for employers. Different government agencies use different tests to determine a worker’s status. The one thing the tests have in common is that they are subjective: two people applying the same test to the same worker will often reach different conclusions about the worker’s status. Employers face substantial liabilities under tax provisions, employee benefit plans, workplace rules, overtime requirements, and other laws if they misclassify an employee as an independent contractor.
On July 21, the IRS announced that it is eliminating its current determination letter program for tax-qualified retirement plans. (IRS officials had been sending signals that this was coming for several months. It is now official.) Starting in 2017, the IRS will accept determination letter applications in only three circumstances:
- Initial qualification for a new plan. The IRS will still review any plan that has not previously received a determination letter.
- Plan termination. The IRS will still accept applications for a determination upon termination of a plan.
- Other limited circumstances to be determined by the Treasury Department and IRS. The Announcement says that Treasury and the IRS intend periodically to request public comments on what circumstances should be included in this category.
For plan sponsors, favorable IRS determination letters provide protection against disqualification for a “plan document failure”–for example, if the IRS later determines that a plan provision does not comply with the tax-qualification requirements or the IRS determines that a required provision is missing. Given the significant potential costs of a plan being disqualified, third parties often rely on determination letters to confirm that a plan is qualified. For example, buyers in corporate transactions, plans and IRAs accepting rollovers, and lenders often request to see copies of a plan’s favorable determination letter.
The U.S. Court of Appeals for the Sixth Circuit recently affirmed the crucial importance of accurate plan summaries in the post-Amara world. To date, part of the legacy of CIGNA v. Amara has been an uptick of cases in which ERISA plaintiffs allege a material mismatch between a plan document and a summary plan description (“SPD”). Plaintiffs petition the court to use the broad equitable remedies available under ERISA § 502(a)(3) after Amara to reform the plan document to reflect the interpretation the plaintiff favors—even if the plan’s terms on the subject were crystal clear.
The IRS has provided interim guidance in Notice 2015-43 on the application of certain provisions of the Affordable Care Act to expatriate health insurance issuers, expatriate health plans, and employers in their capacity as sponsors of expatriate health plans. The interim guidance is effective for policies that are issued or renewed on or after July 1, 2015, and for plan years that start on or after July 1, 2015. We discussed ACA issues for U.S. expatriates and expatriate health plans in an earlier post.
As background, the regulatory agencies issued temporary relief in FAQs XIII and FAQs XVIII that exempted certain expatriate health plans from some of ACA’s market reforms if they complied with a number of pre-ACA mandates. The FAQs applied only to insured plans with enrollment limited to primary insureds who live outside their home country or outside the U.S. for at least 6 months during a 12-month period and their dependents. The FAQs provided no relief for self-insured plans. Continue Reading
A recent Massachusetts district court decision in In Re Fidelity ERISA Float Litigation highlights the need for ERISA fiduciaries to evaluate the treatment of a particular type of interest called “float income” to ensure compliance with ERISA. The Department of Labor has long taken the position that retention of float income without sufficient disclosures can constitute prohibited self-dealing. In Re Fidelity ERISA Float Litigation and a March 2014 Eighth Circuit decision, Tussey v. ABB, indicate that fiduciaries should review the structure and documentation of accounts that generate float income to determine whether the interest is a plan asset. As discussed in more detail below, if float income is determined to be a plan asset, fiduciaries should ensure that they comply with Department of Labor guidance.
The IRS issued a notice today stating that it intends to amend regulations to prohibit a pension plan from offering a lump sum distribution to participants who are receiving annuity payments. The new guidance would take effect today, except for certain lump sum offers already in progress. While de-risking through lump sum offers becomes more limited, one state’s legislature made de-risking through annuity purchase a little more attractive: Connecticut passed legislation shielding annuity benefits from creditors of retirees when paid under a group annuity contract that replaced an ERISA-covered pension.
The bipartisan Tax Reform Working Group on Savings and Investment has submitted its report to Chairman Hatch and Ranking Member Wyden of the Senate Finance Committee. The report provides the Finance Committee with policy options and recommendations to consider as part of comprehensive tax reform. Continue Reading