In June, we wrote about one of the multitude of issues raised by COVID-19 furloughs – the possibility of triggering vesting in the company’s qualified retirement plan under the partial plan termination rules. Recently the IRS issued new guidance that will be relevant to employers who might be rehiring employees before the end of 2020. On its website, the IRS posed this question: “Are employees who participated in a business’s qualified retirement plan, then laid off because of COVID-19 and rehired by the end of 2020, treated as having an employer-initiated severance from employment for purposes of determining whether a partial termination of the plan occurred?” The IRS then answered the question, “Generally, no.” This means that the employer may be able to continue to maintain vesting (and enforce forfeitures) in its retirement plan if enough formerly furloughed employees are brought back before the end of the year. While this answer isn’t earth-shattering or even frankly surprising, it’s welcome clarity in a time of so many uncertainties.
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00adminhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngadmin2020-08-18 11:23:052020-08-18 11:23:08Back in the Saddle Again … How Rehired Employees Affect Partial Termination Analysis
The Department of Labor has returned to the Fiduciary Rule once again with its third attempt to provide a regulatory framework that protects retirement investors while not imposing unnecessary burdens on investment advisors and consultants.
Plan sponsors of 401(k) plans should be aware that the DOL will once again apply the historical “five-part-test” in evaluating whether 401(k) advisors are plan fiduciaries. The return of the five-part-test is the result of the Fifth Circuit invalidating the DOL’s 2016 version of the fiduciary rule, which had temporarily replaced the five-part-test. Under the “new-again” five-part-test, an investment advisor to a 401(k) plan or plan participant is deemed to be a plan fiduciary if the advisor makes investment recommendations on a regular basis pursuant to an agreement or understanding with the 401(k) plan or plan participant and the advisor’s recommendations serve as the primary basis for making the decision to invest in specific investment options. A 401(k) plan advisor determined to be a fiduciary under the five-part-test cannot receive variable compensation tied to a 401(k) participant’s investment decision (generally, referred to as conflicted compensation).
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00adminhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngadmin2020-08-14 09:35:172020-08-14 09:35:20One Last Time: The DOL Returns to the Fiduciary Rule for Retirement Plans
President Trump signed an executive order (the “Order”) on August 8, 2020 that directs Treasury to suspend collection of the employee portion of Social Security (6.2%) for workers who earn less than $4,000 (on a pre-tax basis) during a two-week period. The Order only defers the collection of the tax, it does not waive the tax. It is, at essence, an interest-free loan from the federal government. While the Order directs Treasury to explore ways to eliminate the deferred payroll tax obligation, an elimination of the tax, even on a temporary basis, presumably requires action from Congress. The Order may also be challenged in court.
We are aware of several business studies that conclude that a high percentage, between 70-90%, of corporate acquisitions fail to meet their business objectives. When looking at why the time, effort, and expense invested in a corporate acquisition turn out not to achieve the business synergies and value creation that were expected, it is apparent that workforce integration and commitment after the transaction closes often is a contributing factor to why these acquisitions fail.
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00adminhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngadmin2020-07-30 13:27:282020-07-30 13:27:30If a Tree Falls in the Forest – Employee Benefits in Mergers and Acquisitions Workforce Integration
We have been monitoring an increase in litigation relating to COBRA election notices in recent months. The plaintiffs in these cases allege that COBRA election notices are deficient, and as a result, the plaintiffs, on a class basis, should be awarded a $110/per day per participant penalty (among other relief). Many of these cases allege deficiencies on notices that are substantially similar to the Department of Labor’s model notice.
While none of these cases have fully worked through the courts, a number have settled for significant sums. The settlement success has predictably spurred more complaints and suits.
On July 14, 2020, Colorado Governor Jared Polis signed into law the Healthy Family and Workplaces Act passed by the Colorado General Assembly during its recently concluded legislative session in June 2020. The new law mandates that nearly all employees working for public and private employers in Colorado must begin accruing at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total, which balance shall carryover year-to-year subject to the limit. This requirement goes into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.
https://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.png00adminhttps://www.employeebenefitslawblog.com/wp-content/uploads/2022/10/logo_vertical-v2.pngadmin2020-07-14 15:54:522020-07-14 15:54:54Governor Polis Signs New Paid Sick Leave Law for All Colorado Employees
The IRS has eased the restrictions on mid-year changes to safe harbor contributions, in response to the hardships caused by the coronavirus pandemic.
Employers are generally not allowed to reduce or suspend safe harbor matching or nonelective contributions mid-year unless either (1) the annual safe harbor notice included a statement that the employer could amend the plan mid-year to reduce or suspend the safe harbor contribution, or (2) the employer can demonstrate that it is operating at an economic loss during the plan year. Even if the employer satisfies one of these requirements, the employer must provide a 30-day advance notice before the effective date of the suspension. The suspension of the safe harbor contribution will also mean that the plan becomes subject to nondiscrimination testing for the current plan year.
Back in the Saddle Again … How Rehired Employees Affect Partial Termination Analysis
/in 401(k) Plans, 403(b) plans, 457(b) plans, 457(f) plans, Defined Benefit Plans, ESOPs, Governmental Plans, IRS, Retirement Plansby Beth Nedrow
In June, we wrote about one of the multitude of issues raised by COVID-19 furloughs – the possibility of triggering vesting in the company’s qualified retirement plan under the partial plan termination rules. Recently the IRS issued new guidance that will be relevant to employers who might be rehiring employees before the end of 2020. On its website, the IRS posed this question: “Are employees who participated in a business’s qualified retirement plan, then laid off because of COVID-19 and rehired by the end of 2020, treated as having an employer-initiated severance from employment for purposes of determining whether a partial termination of the plan occurred?” The IRS then answered the question, “Generally, no.” This means that the employer may be able to continue to maintain vesting (and enforce forfeitures) in its retirement plan if enough formerly furloughed employees are brought back before the end of the year. While this answer isn’t earth-shattering or even frankly surprising, it’s welcome clarity in a time of so many uncertainties.
Read moreOne Last Time: The DOL Returns to the Fiduciary Rule for Retirement Plans
/in 401(k) Plans, Corporate Governance in Benefits, ERISA, Fees, Fiduciary Duties, Investments, Retirement Plansby Bret Busacker
The Department of Labor has returned to the Fiduciary Rule once again with its third attempt to provide a regulatory framework that protects retirement investors while not imposing unnecessary burdens on investment advisors and consultants.
Plan sponsors of 401(k) plans should be aware that the DOL will once again apply the historical “five-part-test” in evaluating whether 401(k) advisors are plan fiduciaries. The return of the five-part-test is the result of the Fifth Circuit invalidating the DOL’s 2016 version of the fiduciary rule, which had temporarily replaced the five-part-test. Under the “new-again” five-part-test, an investment advisor to a 401(k) plan or plan participant is deemed to be a plan fiduciary if the advisor makes investment recommendations on a regular basis pursuant to an agreement or understanding with the 401(k) plan or plan participant and the advisor’s recommendations serve as the primary basis for making the decision to invest in specific investment options. A 401(k) plan advisor determined to be a fiduciary under the five-part-test cannot receive variable compensation tied to a 401(k) participant’s investment decision (generally, referred to as conflicted compensation).
Read moreUnder Pressure… Payroll Taxes Deferred
/in IRSBy Kevin Selzer and Sarah Ritchey Haradon
President Trump signed an executive order (the “Order”) on August 8, 2020 that directs Treasury to suspend collection of the employee portion of Social Security (6.2%) for workers who earn less than $4,000 (on a pre-tax basis) during a two-week period. The Order only defers the collection of the tax, it does not waive the tax. It is, at essence, an interest-free loan from the federal government. While the Order directs Treasury to explore ways to eliminate the deferred payroll tax obligation, an elimination of the tax, even on a temporary basis, presumably requires action from Congress. The Order may also be challenged in court.
Read more
If a Tree Falls in the Forest – Employee Benefits in Mergers and Acquisitions Workforce Integration
/in 401(k) Plans, Benefits Plan Creation, Cafeteria Plans, Defined Benefit Plans, ERISA, Executive Compensation, Health & Welfare Plans, Retirement Plansby John Ludlum
We are aware of several business studies that conclude that a high percentage, between 70-90%, of corporate acquisitions fail to meet their business objectives. When looking at why the time, effort, and expense invested in a corporate acquisition turn out not to achieve the business synergies and value creation that were expected, it is apparent that workforce integration and commitment after the transaction closes often is a contributing factor to why these acquisitions fail.
Read moreWait a Minute Mr. Postman . . . COBRA Litigation Update
/in DOL, ERISA, Health & Welfare Plans, Litigationby Kevin Selzer
We have been monitoring an increase in litigation relating to COBRA election notices in recent months. The plaintiffs in these cases allege that COBRA election notices are deficient, and as a result, the plaintiffs, on a class basis, should be awarded a $110/per day per participant penalty (among other relief). Many of these cases allege deficiencies on notices that are substantially similar to the Department of Labor’s model notice.
While none of these cases have fully worked through the courts, a number have settled for significant sums. The settlement success has predictably spurred more complaints and suits.
Read moreGovernor Polis Signs New Paid Sick Leave Law for All Colorado Employees
/in Health & Welfare Plans, State Benefits LawsBy Bradford Williams
On July 14, 2020, Colorado Governor Jared Polis signed into law the Healthy Family and Workplaces Act passed by the Colorado General Assembly during its recently concluded legislative session in June 2020. The new law mandates that nearly all employees working for public and private employers in Colorado must begin accruing at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total, which balance shall carryover year-to-year subject to the limit. This requirement goes into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.
Read moreTell Me Something Good: IRS Eases Restrictions on Mid-Year Changes to Safe Harbor Contributions
/in 401(k) Plans, 403(b) plans, ERISA, IRS, Retirement Plansby Brenda Berg
The IRS has eased the restrictions on mid-year changes to safe harbor contributions, in response to the hardships caused by the coronavirus pandemic.
Employers are generally not allowed to reduce or suspend safe harbor matching or nonelective contributions mid-year unless either (1) the annual safe harbor notice included a statement that the employer could amend the plan mid-year to reduce or suspend the safe harbor contribution, or (2) the employer can demonstrate that it is operating at an economic loss during the plan year. Even if the employer satisfies one of these requirements, the employer must provide a 30-day advance notice before the effective date of the suspension. The suspension of the safe harbor contribution will also mean that the plan becomes subject to nondiscrimination testing for the current plan year.
Read more