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On January 12, 2021, the Employee Benefits Security Administration (“EBSA”) of the Department of Labor (“DOL”) announced new guidance on a range of issues related to missing participants:

  • In Missing Participants – Best Practices for Pension Plans, EBSA has provided examples of best practices that it has identified as being effective at minimizing and mitigating the problem of missing or nonresponsive participants.
  • This new guidance also includes Compliance Assistance Release No. 2021-01, which provides a roadmap of investigative processes and case-closing practices of EBSA investigators who conduct Terminated Vested Participants Project (“TVPP”) audits of defined benefit pension plans. One purpose of these audits is to assess whether defined benefit plans have taken appropriate steps to locate missing participants and beneficiaries.
  • EBSA also issued Field Assistance Bulletin No. 2021-01, which announced the DOL’s temporary enforcement policy on a terminated defined contribution plans’ use of the Pension Benefit Guaranty Corporation’s expanded missing participants program.

This article focuses on the guidance for ongoing plans (and not Field Assistance Bulletin 2021-01 for terminated plans).

Continue Reading Five New Ways That Plan Fiduciaries May Locate Missing Participants

The Internal Revenue Service has issued guidance (Notice 2020-15) that allows sponsors of high deductible health plans (“HDHPs”) to reimburse up to the full cost of medical care services and items for testing and treatment of COVID-19 before plan participants meet the plan’s minimum statutory deductible.  Accordingly, participants in a HDHP that waives

Businesses are rapidly developing strategies to continue functioning and protect their workforces in the face of the growing Coronavirus COVID-19 outbreak. For obvious reasons, businesses may want to deploy health screening, testing, and professional medical advice services—including telemedicine—to their employees and dependents. It is critical that employers’ health plans support these efforts and not get

(This article was originally published in Law360 and has been modified for this blog.)

Employers commonly offer a wide array of employee benefit plans and programs.  In addition to traditional staples, many employers today offer an employee assistance program, dependent care, accident insurance and even pet insurance.  In an increasingly competitive labor market, offering a full spectrum of employee benefits is an important way to maintain a competitive advantage.  While the type of programs offered have increased, employees may not always have sufficient knowledge to make use of them.  In a 2017 survey, only 60 percent of employees thought their employers effectively educated them to select the benefits options that meet their needs.  Underutilization means employers are not receiving the full benefit of their offerings.

That is why some employers are starting to use a navigator, or concierge service, to help employers realize a greater return on their investment in these programs by raising employees’ awareness of available benefits and promoting employees’ access and utilization of them.  Benefit concierge services raise several unique legal issues in the areas of data privacy, Health Insurance Portability and Accountability Act privacy, the Employee Retirement Income Security Act, and technology, to name a few.  With appropriate legal counsel and planning, many of these issues can be addressed.  This article highlights some of the legal issues that may arise when providing a concierge service.

Continue Reading Beware Laws Intersecting Benefit Concierge Services

On the last day of August, the Trump administration signed an executive order proposing a number of changes which the administration says is intended to strengthen retirement security in America, specifically, by expanding access to multiple employer plans and reducing the costs and burdens associated with employee plan notices.  However, tucked away at the end of this executive order is a proposal that, when implemented, could have a significant impact on plan participants — the revision of the required minimum distribution mortality and life expectancy tables.  This post summarizes how this change could impact defined contribution plan participants.

Continue Reading Executive Order on Strengthening Retirement Security in America: Impact on Required Minimum Distributions from Defined Contribution Accounts

California’s highest court recently pronounced a new worker classification standard in Dynamex v. Lee, a case involving wage and hour requirements under the California Labor Code. Compared with the old rule, the new standard is simpler, arguably more predictable—and will make it more difficult for businesses to classify workers as independent contractors. Dynamex will have immediate consequences for businesses operating in California. Indeed, within days of the ruling, workers sued two prominent “gig economy” companies alleging unlawful worker classifications.  For companies in every state, the decision is a reminder that the potential risks of worker misclassification could arise under myriad state and federal laws.

Continue Reading What Companies Should Know in the Wake of California’s New Worker Classification Ruling

The Advisory Council on Employee Welfare and Pension Benefit Plans (often called the “ERISA Advisory Council”) has released a report urging the Department of Labor (“DOL”) to streamline retirement plan disclosure requirements. The report reiterates concerns the Council expressed in 2005 and 2009, echoed by the U.S. Government and Accountability Office (the “GAO”) in 2013, that the number and complexity of mandatory disclosures confuses participants and burdens plan administrators. The Council’s latest report goes further than previous reports have done, outlining four recommendations for specific rule changes and proposing new model notices to simplify the current disclosure scheme.

Continue Reading ERISA Advisory Council Urges DOL to Streamline Retirement Plan Disclosures

Legislation proposed by the Republicans to repeal and replace the Affordable Care Act, called the American Health Care Act (“AHCA”), repeals most of the taxes that were imposed by the Affordable Care Act on employers, their health plans and employees, such as the employer mandate and 0.9% Medicare surtax. The AHCA would not repeal the Affordable Care Act’s insurance coverage mandates, including the elimination of lifetime and annual dollar limits on essential health benefits or requirements to cover dependent children up to age 26. Below is a summary of the key provisions that would affect employers and their health plans.

Continue Reading The Effect of American Health Care Act on Employers

Long considered to be at the forefront of providing benefits to employees who take family and medical leave, California recently enacted a new law aimed at increasing the benefits paid out to employees who take time off to care for an ill or injured family member or for new child bonding. Meanwhile, San Francisco’s Board