ERISA and Employee Benefits

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The complex world of Employee Retirement Income Security Act (ERISA), employee benefits and executive compensation is perhaps more highly regulated than any other area of organizational life. Our experienced team of ERISA lawyers and litigators have decades of experience in providing cutting-edge solutions and programs, to address unique employee benefits and executive compensation issues faced by employers every day.

Retirement and Health Plans

In light of the aggressive rise in ERISA class action lawsuits in both the retirement plan and, , health plan areas – lawsuits that expose an employer’s Board of Directors, C-Suite and other employees to personal liability under ERISA – our ERISA attorneys have developed unique compliance and fiduciary protection programs to help employers minimize their risks. Examples include:

  • Fiduciary protection programs: Address personal liability exposure that ERISA imposes upon an employer’s Board of Directors, C-Suite and other employees in connection with employer-sponsored retirement and health plans, including D&O ERISA coverage analysis.
  • Plan protection programs: ERISA cybersecurity contractual analysis, arbitration clauses, plan expense protocols, fiduciary training, and certification.
  • Customized legal compliance audits: Ensure that retirement and health plan documentation, governance and administration strictly comply with applicable laws including ERISA, the Internal Revenue Code and the Affordable Care Act.
  • 24/7 on-call compliance services: Tailored to the client’s needs regarding employee benefit compliance, administration, and governance.
  • Appeal protocols: Designed for ERISA’s mandatory internal claims and appeals of benefit decisions under retirement and health plans.
  • Missing participants and recovery of plan assets: Recovery of plan assets for retirement and certain health plans. Missing participant identification programs.
  • Corrections: DOL/IRS voluntary compliance correction programs.
  • Mental Health Parity: Mental health parity compliance and fiduciary protection programs.

Taxation of Employee Benefits

We help guide clients through complex federal and state tax laws, including compliance correction programs that govern retirement and health plans. We also design executive compensation and equity-based arrangements severance plans, early retirement window programs and other tax compliant arrangements.

Cybersecurity and ERISA Plans

We have developed crisis management protocols in response to cybersecurity and other breaches of retirement and health plan accounts. Our ERISA team also provides cybersecurity and indemnification analysis of third-party administrative contracts and ERISA fiduciary training for boards, officers and others involved in the administration of benefit plans.

Unique Benefit Offerings

We help employers navigate and comply with complex tax and benefits laws in establishing plans and arrangements tailored to an employer’s specific needs such as:

  • Student Loan Repayment 401(k) plans
  • Fixed-Fee ERISA Compliance Reviews
  • Fiduciary Training and Certification
  • Employee Crisis Funds
  • Wrap Plans
  • VEBAs
  • HSAs, FSAs, HRAs, AHPs
  • Generationally Appropriate Fringe Benefit Plans
  • Deferred Compensation and Stock-Based Plans 

Executive Compensation

We offer unique insight into what works and doesn’t work with respect to incentivizing and rewarding executives including establishment of bonus, severance, equity incentive, and deferred compensation plans among other qualified and non-qualified plans and arrangements. We analyze the needs of the employer, compare it with other competitors where appropriate and provide counsel on effective plan design and operation that is compliant with applicable provisions of ERISA and the Internal Revenue Code including sections 280G and 409A.

ERISA Litigation

A sudden rise in ERISA fiduciary litigation under health plans has joined an aggressive period of similar challenges to retirement plans. The results have cost employers’ billions of dollars over the last few years. Our ERISA litigators have vast experience in representing clients before courts, tribunals, and regulators including the IRS, DOL, PBGC, and HHS.

View More

"Supreme Court Sides with State Regulation of PBMs in Boost to Independent Pharmacies," Health Care Alert (December 16, 2020). Contacts: Todd D. Rosenberg, Barbara H. Ryland
Client Alert/Newsletter
"What’s Next for Your Employees: Congress Responds with New Rules for Employment and Benefit Programs," Crowell & Moring Webinar (April 2, 2020). Presenters: Thomas P. Gies, David McFarlane, S. Starling Marshall, and Christine B. Hawes.
Speech/Presentation
"Payers, Providers, and Patients – Oh My!: Fiduciary Duties Under ERISA," Podcast: Payers, Providers, and Patients – Oh My! (July 10, 2019). Contacts: Payal Nanavati, Joe Records
Client Alert/Newsletter
National General Holdings Corporation: Short-Term Health Plans Include Fees for Unrelated Services in 23 States — The Capitol Forum (May 8, 2019)
Press Coverage
The Naked Ceo – Personal Liability For Board Members And C-Suite Under Erisa (January 25, 2019). Author: David McFarlane.
Publications
Taking the Pulse of New Association Health Plans (January 2, 2019). Authors: David McFarlane, G. Meredith Parnell, and Michelle Chipetine.
Publications
Your Next Cybersecurity Breach Will Be Your 401(k)...Soon (July/August 2018). Authors: David McFarlane and Alice Hall-Partyka.
Publications
Labor & Employment – Repeals and Rollbacks are Likely (May 2017).
Publications
The 24 Firms GCs Love the Most Law360 (June 28, 2016)
Press Coverage
"FLSA Regulations Move Forward and Will Arrive Soon," Labor & Employment Law Alert - US (March 22, 2016). Contacts: Thomas P. Gies, Andrew W. Bagley, Trina Fairley Barlow, Ira M. Saxe
Client Alert/Newsletter

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Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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