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 

U.S. Secretary of Education Released Proposed Changes to Title IX Regulations

On November 16, 2018, U.S. Secretary of Education Betsy DeVos released proposed changes to Title IX regulations on sexual harassment. While the public has 60 days to comment before the regulations take effect, the following are the key aspects of …

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Judicial Protection of the Employment Relationship: The Broad Reach of the Workers’ Compensation Retaliation Prohibition

The Massachusetts Appeals Court recently had the opportunity to assess the limits of a statute designed to protect employees – the prohibition on employer retaliation against employees for pursuing Workers’ Compensation claims. The Court seized upon the unique facts of …

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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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Constructive Discharge Claims: Recent Appellate Decision Narrows Availability

In our defense of employers, we often see the situation where an employee who has quit makes the argument as part of the claim that the actions of the employer compelled the employee to resign. This “constructive discharge” argument can …

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New Federal Background Notice Form

In September of 2018, the Consumer Financial Protection Bureau of the United States issued an update of the Agency’s model Federal Fair Credit Reporting Act notice which must be provided to applicants and employees that are subject to a background …

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Is Your Noncompete Still Valid? Technically Yes, But . . . Recent Decision Foreshadows How The New Massachusetts Noncompetition Agreement Act May Impact Existing Agreements

In an earlier post, we reported on the passage of the new Massachusetts Noncompetition Agreement Act, which takes effect on October 1, 2018, and significantly changes the law in this area by narrowing the permissible protections and imposing several new …

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Governor Baker Signs Noncompetition Bill Into Law

Last Friday, August 10th, Governor Baker signed into law the “Act relative to the judicial enforcement of noncompetition agreements” (the “Act”). Governor Baker’s signature came 11 days after the Massachusetts Legislature passed the Act. As Amanda Baer explained in her recent …

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Massachusetts Legislature Passes Long-Anticipated Act Limiting Noncompetition Agreements

On July 31, 2018, the Massachusetts Legislature passed the “Act relative to the judicial enforcement of noncompetition agreements” (the “Act”). If signed by Governor Charlie Baker, the Act will take effect on October 1, 2018 and limit the ability of …

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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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U.S. Supreme Court Deals Blow to Public Sector Unions in Janus v. AFSCME – Holds Agency Fees May Not Be Charged to Nonconsenting Public Sector Employees

In a widely anticipated decision – Janus v. AFSCME, the United States Supreme Court ruled today that state laws authorizing public sector unions to charge agency fees are unconstitutional because they violate the First Amendment to the United States Constitution.  …

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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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