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.

PODCAST: Anthony DaSilva discusses Protecting Employee Retirement Plans from Cyberattacks

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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 

EEOC Issues Updated Guidance Regarding COVID Screening by Employers

On July 12, 2022, the Equal Employment Opportunity Commission issued updated guidance for employers regarding COVID-19 testing and accommodations. Perhaps most impactful, the EEOC altered its position regarding employers testing employees for COVID-19 as part of a mandatory screening prior …

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Don’t Delay: MA Employers Are Now Strictly Liable for Three Times the Amount of Wages for Late Payments With No Safe Harbor for Paying in Full Prior to Suit!

Under the Massachusetts Wage Act (the “Wage Act”), if an employee voluntarily quits their employment, the employer must pay the employee their final wages, including any earned, unused vacation pay, on the employer’s next regular pay day. However, when an employee …

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The Times They Keep A-Changing: The New Illinois Restrictions on the Use of Non-Compete and Non-Solicit Agreements

The state-by-state non-compete reform movement keeps rolling – this time in the state of Illinois.  Effective January 1, 2022, the Illinois Freedom to Work Act has dramatically changed the landscape for employers in that state who desire to use non-compete …

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OSHA Withdraws COVID-19 ETS, But Signals That It Is Moving Forward with Final Rule

On January 25, 2022, OSHA announced the withdrawal COVID-19 Vaccination and Testing Emergency Temporary Standard (the “ETS”). In the announcement, OSHA stated that although it “is withdrawing the [ETS] as an enforceable emergency temporary standard, [it] is not withdrawing the …

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Supreme Court Stays OSHA’s COVID ETS

The OSHA COVID ETS is once again stayed. On January 13, 2022, the United States Supreme Court stayed OSHA’s Emergency Temporary Standard which required that employers with 100+ employees require employees to either (a) become vaccinated against COVID-19; or (b) …

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The District of Columbia’s Aggressive Ban on Non-Compete Agreements Likely to Take Effect in 2022

In December 2020, the District of Columbia Council passed and in January 2021, Mayor Muriel Bowser signed legislation entitled the Ban on Non-Compete Agreements Amendment Act of 2020 (the “DC Act”).  While the effective date of the Act was delayed …

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Don’t Forget! Minimum Wage Rates in Massachusetts Increase, Effective January 1, 2022

The minimum wage in Massachusetts will increase from $13.50 to $14.25 an hour, effective January 1, 2022. In addition, the minimum wage for tipped employees who make more than $20/month in tips will increase from $5.55/hour to $6.15/hour. Employers may …

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CDC Shortens COVID-19 Related Isolation and Quarantine Period, and Distinguishes Between Vaccinated Individuals With/Without Booster

On December 27, 2021, the CDC issued updated guidance which significantly shortens the periods of isolation and quarantine it recommends for COVID-related diagnosis and/or exposure. Specifically, the CDC now recommends that individuals who test positive for COVID-19 (regardless of vaccination …

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Massachusetts Supreme Judicial Court Adopts FLSA’s Joint Employer Test

Jonathan R. Sigel and Ashlyn E. Dowd On December 13, 2021, the Massachusetts Supreme Judicial Court (SJC) considered whether the so-called “ABC Test” set forth in M.G.L.c. 149, §148B (“Section 148B”) should be applied to determine whether an entity is …

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OSHA Exercising Discretion in Enforcing the ETS Until January 10

As posted here, the Sixth Circuit Court of Appeals lifted the stay of the Vaccination and Testing Emergency Temporary Standard (the “ETS”) issued by OSHA. The Department of Labor announced on Saturday, December 18 that OSHA is exercising enforcement discretion …

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Don’t Delay: MA Employers Are Now Strictly Liable for Three Times the Amount of Wages for Late Payments With No Safe Harbor for Paying in Full Prior to Suit!

Under the Massachusetts Wage Act (the “Wage Act”), if an employee voluntarily quits their employment, the employer must pay the employee their final wages, including any earned, unused vacation pay, on the employer’s next regular pay day. However, when an employee …

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OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) – Temporarily Blocked

As part of President Biden’s “Path Out of the Pandemic” COVID-19 plan, the Biden Administration instructed the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to promulgate an Emergency Temporary Standard (the “ETS”) regarding mandatory vaccinations or weekly …

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Massachusetts COVID-19 Emergency Paid Sick Leave – Benefits Extended

As employers know, in May 2021, Massachusetts passed a law, “An Act providing for Massachusetts COVID-19 emergency paid sick leave,” which requires employers to provide employees up to 40 hours of paid leave for reasons related to the effects of …

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Employer Tax Credits for Employee Paid Leave Due to COVID-19 Applies to Government Entities

The Internal Revenue Service (IRS) recently published guidance defining “Eligible Employer” for purposes of the American Rescue Plan Act of 2021 (ARPA) tax credits.     Under ARPA, certain employers can claim refundable tax credits that reimburse them for the costs of providing …

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American Rescue Plan Act of 2021 and the anticipated Massachusetts COVID-19 Emergency Paid Leave

In lieu of our annual Employment Law Seminar, Mirick O’Connell’s Labor, Employment and Employee Benefits attorneys are hosting a Spring Webinar Series focusing on hot topics in employment law. Attorney Kim Rozak and I presented the second program in the …

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Paid Family and Medical Leave is Right Around the Corner!

Beginning on January 1, 2021, covered individuals in the Commonwealth will be eligible to begin using Paid Family and Medical Leave (“PFML”). Under the law – which was enacted in 2018 as part of the so-called “Grand Bargain” between the …

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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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