Employee Benefits, ERISA & Executive Compensation

Crowley Fleck has one of the largest and most experienced Employee Benefits practice groups in the region. While most of our clients are headquartered in Montana, North Dakota, and Wyoming, many conduct business on a national level. Our clientele include multiple employer associations, banks, hospitals, state and local government entities, church-affiliated organizations, for-profit and non-profit entities, tax-exempt entities, and publicly traded companies.

Our attorneys are knowledgeable advisors on the full array of benefit plans and challenges facing this ever-changing and complicated area of law. They also regularly speak on and publish articles about hot topics trending in employee benefits, including the Affordable Care Act, US Supreme Court decisions, and other new developments that arise when regulations are issued.

The assortment of employee benefit plans requiring legal advice includes: self-funded health insurance plans, welfare benefit plans, 401(k) plans, 403(b) plans, profit sharing plans, cafeteria plans, health reimbursement arrangements, supplemental executive retirement plans, executive bonus plans, medical expense reimbursement plans, stock or equity-based incentive programs, group health plans, “top hat” plans, deferred compensation arrangements, money purchase pension plans, union pension plans, defined benefit plans, cash balance plans, and individual retirement accounts (IRAs). Our benefits attorneys have a mastery of the many and complicated laws impacting plans, including the Internal Revenue Code, ERISA, COBRA, HIPAA, Medicare, and other state mandates. Whether a plan requires compliance maintenance, business-driven changes, representation in an audit, corrections for mistakes, creation or termination, or assistance in a litigation setting, our attorneys offer the highest quality service in the region.

Affordable Care Act

Hundreds of thousands of pages of regulations have been issued under the ACA in recent years, so it is no wonder employers are confused. Our Employee Benefits attorneys keep current on all of the laws impacting employer responsibilities under the ACA. Our Employee Benefits attorneys team with the Healthcare Practice Group to keep health providers and other impacted clients up-to-date on all aspects of Health Care Reform.

Cafeteria Plan Advice

If your employees can pay for benefit plans through salary adjustments then you are in the world of cafeteria plans. Cafeteria plans are an amazing workplace benefit that can have a lot of bang for their buck, but they are often misunderstood. Cafeteria plans can complement health insurance or self-insurance programs, Health Savings Accounts (HSAs), “Flex Accounts” and more. The Employee Benefits attorneys advise clients about the pitfalls of employee-paid benefits in the workplace and the best way to use cafeteria plans under current law.

Discrimination Issues for Health Plans

Discriminating in favor of the higher-paid employees in your workforce with respect to health benefits can have significant tax consequences and potential penalties under the Affordable Care Act. Our Employee Benefits attorneys are intimately familiar with the laws restricting discrimination and how to structure benefits programs to avoid compliance issues. The Employee Benefits group teams with the Labor and Employment Practice Group to guide employers through all aspects of workplace discrimination.

Discrimination Issues for Retirement Plans

Retirement plans operate in a virtual minefield of non-discrimination rules, meant to prevent highly-compensated employees from unfairly gaining better retirement benefits. Failing non-discrimination tests can result in greater tax consequences to those higher-paid employees or it can impact the maximum level of tax deferrals achieved for those individuals. Our Employee Benefits attorneys can provide creative recommendations for performing tests or for changing plan designs. We are also experienced with analysis required to determine controlled groups, commonly controlled groups, and affiliated service groups, including requirements for Qualified Separate Lines of Business (QSLOBs).

ERISA Litigation

Our ERISA Litigation practice is an integral part of the Crowley Fleck Employee Benefits team. Our ERISA litigation lawyers understand the procedural rules peculiar to ERISA lawsuits, including ERISA preemption of state laws, exhaustion of administrative remedies, deferential standard of review, limitations on discovery, the restrictions on remedies such as punitive damages, and the limitations on jury trials. Such knowledge can help end suits early and successfully. Drawing on substantial skills and in-depth knowledge of ERISA’s substantive provisions, our ERISA litigation group has been successful in making both threshold motions to dismiss and motions for summary judgment, thus avoiding or minimizing costly and disruptive discovery and trials.

Executive Pay and Executive Deferred Compensation

Attracting and retaining a top quality management team is vitally important for the success of any business. Our Employee Benefits lawyers are adept at designing or reviewing existing executive incentives that utilize the advantages of some of the most complicated tax code sections, including 409A and 457(f). We regularly advise on a variety of non-qualified deferred compensation arrangements, including severance pay, “top hat” plans, bonus deferral plans, excess benefit plans, and supplemental plans. We team with the Taxation Practice Group to assist with stock options, stock appreciation rights, and other equity-based incentives.

Fiduciary Duty Issues for Health Plans

Nearly all health benefit plans carry with them fiduciary and other responsibilities that fall on the employer. Most plans are subject to ERISA fiduciary duties, which impose high expectations and steep financial consequences and personal liability for breaches of fiduciary duties. Fiduciary/trustee education and awareness are particularly important for self-funded health plans. The Employee Benefits attorneys have decades of experience resolving fiduciary and prohibited transaction issues and providing fiduciary education to numerous boards of directors and trustees.

Fiduciary Duty Issues for Retirement Plans

Retirement plan fiduciaries are held to a higher “expert” standard of care and prudence. Fiduciaries must be knowledgeable about the precise fees and costs that plan service providers are charging against plan assets. Over the past five years plan fiduciaries have witnessed ever-increasing duties to request, monitor, evaluate, and disclose plan fees, including hidden fees and indirect fees. In addition, fiduciaries must exercise care and prudence when determining retirement plan investment options. If retirement plans have co-fiduciaries and allow brokerage-type investing, our Employee Benefits attorneys can assist with legal strategies to minimize liability exposure. Generally, fiduciary exposure includes joint, several, and personal liability.

Fixing Benefits Plans with the IRS and DOL

The intricate nature of benefit laws often gives rise to errors and mistakes that carry enormous risks for employers, plan participants, and plan fiduciaries. There are three main voluntary correction programs that might apply: (1) IRS correction; (2) DOL correction; and (3) delinquent filer correction. The IRS correction program primarily addresses retirement plans and IRAs that suffer mistakes borne of operational failures, document failures, and tax-qualification failures. The DOL correction program is offered to a very finite set of fiduciary breaches, relevant to any benefit plan subject to ERISA. The delinquent filer program handles delinquent Annual Reporting errors regarding DOL/IRS Form 5500. All correction program submissions involve a significant degree of legal strategy, which our attorneys have developed from the numerous filings with IRS and DOL in our region.

Health Plan Design and Compliance

Employer sponsored health plans are subject to a wide range of complex laws including the Affordable Care Act, ERISA, COBRA and HIPAA, as well as federal tax and discrimination laws and Montana insurance mandates. Fiduciary and trustee education and tax law awareness are particularly important for self-funded health plans, including Voluntary Employees’ Beneficiary Associations (“VEBAs”). Our Employee Benefits attorneys have extensive experience addressing all types of employer plans and advising employers about which rules they need to worry about and how to take the steps needed to stop worrying.

HIPAA Compliance for Health Plans

HIPAA Privacy and Security requirements impact virtually any business that has access to individual health information. Employer-sponsored health plans have unique hurdles when it comes to HIPAA compliance. The Employee Benefits lawyers team with the Healthcare Practice Group to offer cutting-edge training and compliance tools, as well as necessary personalized advice, to help clients easily navigate the HIPAA maze.

Keeping a Qualified Retirement Plan Tax-Qualified

Qualified retirement plans, such as 401(k), 403(b), and profit sharing plans, operate in a unique tax-advantaged environment. Our Employee Benefit lawyers assist employers in finding the best plan designs that maximum business goals, personnel goals, and value for the costs of benefits provided. Our firm maintains an IRS pre-approved retirement plan document with maximum flexibility and customization within the bounds of applicable laws. If your plan is individually-designed, we are experienced with IRS determination letter requirements for approval of its tax-qualified status. If your plan has not been properly maintained, we can provide you with any required “good faith” remedial plan amendments and, if necessary, correct your plan with the IRS.

Maximizing Tax Deferrals using Retirement Plans

Standard 401(k) Plans do not allow owner employees to maximize their tax deferrals. However, with an in-depth understanding of IRS compliance rules, we are able to redesign 401(k) plan so that management employees can meet or exceed their tax deferral goals on a cost effective basis by adding IRS safe harbors that allow maximum salary deferrals, Federal Social Security integration with employer contributions, and employer contributions that are allocated by employee groups. However, if management tax-deferral goals exceed what can be done within a 401(k) plan, a hybrid cash balance defined benefit plans can be established as a companion to the 401(k) plan, allowing for significantly greater tax deferrals while maintaining benefit transparency. Once the design phase is completed, we are available to prepare the necessary plan documents to put the program in place.