Employee Benefits and Executive Compensation

The Employee Benefits and Executive Compensation Group advises clients with respect to designing and implementing the following:

  • Executive compensation plans, including SERPs, top-hat plans, and 457(b) and 457(f) plans, as well as counseling regarding Section 409A compliance and executive compensation disclosure under the new proxy rules
  • Tax-qualified retirement plans, including 401(k), 403(b) and 457 plans, defined benefit plans, and ESOPs
  • Welfare benefit plans, including health reimbursement arrangements, section 125 cafeteria plans, Health FSAs, DCAPs and “wrap” plans, as well as counseling regarding the implementation of HSAs, wellness plans, severance plans and claim administration
  • Fringe benefit plans, including transportation and educational assistance plans

We also advise clients with respect to the day-to-day administration, operation and interpretation of executive compensation and workforce benefit plans; the legal compliance, reporting and disclosure requirements related to such plans; and the administrative procedures required to administer such plans.

We provide counsel regarding HIPAA’s portability, privacy and security rules; COBRA; USERRA; FMLA; Medicare and other group health plan federal mandates, as well as new legislation affecting welfare plans, including the Genetic Information Nondiscrimination Act of 2008, Michelle’s Law and the Children’s Health Insurance Program Reauthorization Act of 2009. We also provide counseling regarding the Massachusetts Health Care Reform Act and the related federal tax implications of extended health coverage for those who are not “dependents” under federal tax law.

We also advise clients with respect to the following:

  • Designing a fiduciary governance structure to manage ERISA fiduciary liability risk and counseling fiduciaries regarding their ERISA duties and the prohibited transaction rules
  • Planning audits for legal compliance
  • Correcting plan failures under the IRS and DOL voluntary correction programs
  • Periodically reviewing management compensation arrangements and compliance with intermediate sanctions
  • Conducting negotiations and due diligence related to executive compensation and workforce benefit plans in business mergers, initial public offerings, acquisitions and dispositions, including multi-employer withdrawal liability
  • Handling executive compensation and workforce benefits issues arising in bankruptcy transactions

We have extensive experience practicing before federal agencies, including the Internal Revenue Service, the DOL and the Pension Benefit Guaranty Corporation, as well as in state and federal courts. We have served as special counsel for companies, other law firms and accounting firms providing executive compensation and workforce benefits advice, and we work with our Trusts and Estates Group, advising clients on the complex income, excise and estate tax rules governing plan distribution to estates and individuals.

Client Testimonial:

"Having a broad base of specialties within one firm and a point person who really knows us, our business and our goals has proven to be invaluable for over 20 years now."

Theodore B. Goodnow, CEO
Woodmeister Master Builders, Inc.

Practice Chair

John P. McMorrow

John P. McMorrow
Of Counsel

Representative Matters

  • Counseled for-profit and not-for-profit employers regarding the new COBRA premium assistance subsidy rules under The American Recovery and Reinvestment Act of 2009 and the expansion of the HIPAA privacy and security rules; developed a legal compliance strategy, drafted documents and designed compliance practices and procedures
  • Counseled for-profit and not-for-profit employers regarding the impact of the Children’s Health Insurance Program Reauthorization Act of 2009 on their welfare benefits plans; developed a legal compliance strategy; and drafted amendments of health care and section 125 cafeteria plans for board approval 
  • Counseled for-profit employers regarding their claims procedures for handling claims of breach of fiduciary duty related to their tax-qualified retirement plan, including an ESOP 
  • Counseled for-profit and not-for-profit employers regarding the impact of IRC 409A on their non-qualified deferred compensation arrangements, separation pay agreements and change of control agreements; develop a legal compliance strategy and draft related documentation for board approval 
  • Counseled for-profit and not-for-profit employers regarding the Massachusetts Health Care Reform Act, including counseling related to the employer “fair share” contribution, the “free rider surcharge” and the employer and employee HIRD forms; developed a legal compliance strategy and drafted related documentation for board approval 
  • Counseled for-profit and not-for-profit employers regarding operational or plan defects related to their tax-qualified retirement plans, developed a legal compliance strategy and submitted voluntary compliance filings to the IRS under its Employee Plan Compliance Resolution System 
  • Counseled for-profit and not-for-profit employers regarding failure to file Annual Return/Report (Form 5500) on time , developed a legal compliance strategy and submitted filings to the DOL under its Delinquent Filer Voluntary Compliance Program 
  • Counseled a for-profit plan sponsor regarding action required to “freeze” its defined benefit pension plan; drafted documents and submitted plan to the IRS for a determination letter 
  • Counseled for-profit plan sponsors regarding action required to terminate 401(k) plans and terminate defined benefit pension plans; drafted documents and submitted the plan to the IRS for a determination letter 
  • Counseled for-profit and not-for-profit employers with respect to the amendments required to conform their tax-qualified retirement plans to the Heroes Earnings and Assistance and Relief Act of 2008; the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007; and the Pension Protection Act of 2006; also developed a legal compliance strategy, drafted related amendments for board approval and submit for-profit tax-qualified retirement plans to the IRS for a determination letter 
  • Developed and implemented a fiduciary governance structure for a for-profit employer to manage ERISA fiduciary liability risk 

Employers Must Ensure Compliance with the Families First Coronavirus Response Act as they Re-Open and Recall Employees from Furlough

The U.S. Department of Labor recently issued new Questions and Answers regarding its interpretation of the Families First Coronavirus Response Act (“FFCRA”). In relevant part, the DOL made clear that if an employer is calling employees back from furlough, the …

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Update: Families First Coronavirus Act

The Department of Labor issued new guidance over the weekend regarding the Families First Act, including important definitions and clarifications.  I broke down the new guidance into the overall framework of the new EFMLA and EPSLA in this recorded webinar. …

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Department of Homeland Security Relaxes Standards for Verifying Work Authorization

  As a result of the COVID-19 pandemic, the Department of Homeland Security has relaxed its standards requiring in-person review of work authorization documents required to complete the I-9 form. Specifically, if an employer has no employees physically present at a …

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Congress Passes Families First Coronavirus Response Act

On March 18, 2020, Congress passed a bill entitled “Families First Coronavirus Response Act” (the “Act”) aimed at alleviating several major burdens families are currently facing as a result of the coronavirus (COVID-19). The Act, which goes into effect on …

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Executive Order Loosens Open Meeting Law Requirements During Coronavirus Emergency

Governor Baker signed an Executive Order relieving government boards and committees from compliance with certain Open Meeting Law requirements during the novel Coronavirus (COVID-19) emergency. The Order gives public bodies greater leeway to hold closed-door and remote meetings, so that government agencies …

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The Coronavirus and Its Impact on the Workplace

With cases of the novel coronavirus (COVID-19) significantly on the rise, the World Health Organization declaring the coronavirus outbreak a pandemic, and Governor Baker recently declaring a state of emergency in the Commonwealth, employers should be prepared to address a number …

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NLRB Issues Employer-Friendly “Joint Employer” Definition

On February 25, 2020, the National Labor Relations Board (the “NLRB”) announced the final rule governing “joint employer” status under the National Labor Relations Act. The determination of whether an entity is a “joint employer” with a direct employer for purposes …

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Act Requiring the Hands-Free Use of Mobile Devices Went into Effect Yesterday

On November 25, 2019, the Commonwealth of Massachusetts approved Chapter 122 of the Acts of 2019. Under this Act, operators of motor vehicles cannot use handheld electronic devices while driving. The Act specifically holds that no operator of a motor vehicle shall …

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U.S. Department of Education and U.S. Department of Health and Human Services Updates Joint Guidance on the Applicability of FERPA and HIPAA to Student Records

The U.S. Department of Education and the U.S. Department of Health and Human Services recently issued an update to their Joint Guidance on the Applicability of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and …

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U.S. Department of Labor Issues Final Rule on Joint Employer Regulations Under the Fair Labor Standards Act

On January 12, 2020, the United States Department of Labor (“DOL”) issued its final rule under the Fair Labor Standards Act (“FLSA”) governing joint employer status, which significantly narrows the scope of joint employer liability. Under the prior Administration, the DOL …

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The Coronavirus and Its Impact on the Workplace

With cases of the novel coronavirus (COVID-19) significantly on the rise, the World Health Organization declaring the coronavirus outbreak a pandemic, and Governor Baker recently declaring a state of emergency in the Commonwealth, employers should be prepared to address a number …

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MA Paid Family and Medical Leave Act

On June 14th, we reported that Massachusetts delayed the implementation of the payroll tax under the Family and Medical Leave law by three months (i.e., until October 1, 2019). At the time, the government informed the public that the contribution rate …

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Massachusetts Employers: Don’t Forget to Submit the New HIRD Form by November 30

All Massachusetts employers with six or more employees must submit a Health Insurance Responsibility Disclosure form (“HIRD Form”) to MassHealth through the MassTaxConnect web portal by November 30, 2018. In November 2017, Massachusetts amended Chapter 118E of the General Laws …

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Governor Baker Signs “Grand Bargain” Bill Creating Paid Family and Medical Leave and Raising Minimum Wage

On June 28, 2018, Governor Baker signed “An Act Relative to Minimum Wage, Paid Family Medical Leave and the Sales Tax Holiday” making Massachusetts one of very few states in the country to require employers to provide paid family and …

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Employment Law Ballot Initiatives May Go To Massachusetts Voters

Massachusetts voters may soon get another chance to significantly impact employment relationships in Massachusetts through the ballot box, just as they did in 2015 with their approval of the Earned Sick Time law.  This past week, the Attorney General of …

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Do Your COBRA Notices Comply with the Law? If Not, Your Organization Could be Susceptible to a Class Action Lawsuit

Pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), employers with twenty (20) or more employees that provide health insurance must furnish covered employees and their families with certain specific notices that summarize their rights under COBRA after …

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Healthcare Subsidies for Graduate Students

Many colleges and universities provide graduate student employees (e.g., teaching assistants) with a stipend or reimbursement to offset the cost of their medical coverage under a student health plan.  Recent guidance from the Departments of Health and Human Services (“HHS”), …

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EEOC Publishes Sample Notice for Sponsors of Wellness Programs

The Equal Employment Opportunity Commission (EEOC) published a sample notice and related Q&As for use by sponsors of wellness programs that must comply with the new Americans with Disabilities Act (ADA) regulations (issued on May 17, 2016). Employer-sponsored wellness programs that collect …

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Employer Notices of ACA-Subsidized Employees

Upcoming Notices of ACA-Subsidized Employees This spring, employers will begin to receive notices from the Affordable Care Act Exchanges if they have any employees that have received government-subsidized health insurance through the Exchanges. These notices will provide an employer the opportunity …

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