ERISA, Employee Benefits and Executive Compensation

ERISA, executive compensation and other employee benefit plans are impacted by complex intersections of federal labor, tax, securities, corporate and administrative law, as well as applicable state laws. Employers need legal counsel who can cut through these complexities when drafting, implementing or reviewing plans. They also need a legal team that can provide a clear analysis of the benefits and compensation considerations at hand if the company is engaged in a merger, acquisition, spin-off or reorganization.

Holland & Knight's employee benefits, executive compensation and ERISA attorneys have extensive experience guiding companies through the benefits and compensation maze. Our team is dedicated to providing you with local and national assistance to help you accomplish your objectives. And if you are a tax-exempt organization or governmental entity with special employee plan requirements – including tax-sheltered annuities and deferred compensation – we will draw in lawyers from across the firm with specific experience in these areas.

Guiding You on the Design, Drafting and Qualification of Your Employee Plan

Regardless of the type of organization or business in which you are involved, our employee benefits, executive compensation and ERISA attorneys can conduct a complete review of your current employee plans, handle the planning and design of new or modified plans, and take the appropriate steps to ensure that your plans comply under ERISA, the Internal Revenue Code and other applicable statutes and regulations. You can rely on the commitment of our counsel to provide guidance on a full array of plans, including:

• pension, profit-sharing, cash balance and employee stock ownership plans (ESOPs)
• Section 401(k) cash or deferred arrangements and 404(c) participant-directed investment plans
• stock options, restricted stock and other equity compensation plans
• nonqualified deferred compensation plans
• group health and welfare plans, cafeteria plans, severance plans and Voluntary Employees Beneficiary Associations (VEBAs)
• multiple employer welfare arrangements (MEWAs) and collectively bargained arrangements
• individual retirement accounts and annuities as well as simplified employee pension plans

Our lawyers can also counsel you on a wide range of related issues – from vesting, funding requirements, tax deduction rules and fiduciary duties to government agency reporting requirements, distribution requirements and identification of prohibited transactions.

Plan Compliance and Maintenance

Holland & Knight's ERISA, Employee Benefits and Executive Compensation Group can also assist you with plan compliance and maintenance. We provide the following legal services to help ensure that your plans comply with applicable laws:

• detailed analyses of employee benefits legislation and proposed changes in the law
• counsel on government reporting, participant disclosure, nondiscrimination and minimum coverage requirements
• advice on the intricacies of multiemployer and Taft-Hartley plans, collective bargaining agreements and the assignment of pension benefits in connection with Qualified Domestic Relations Orders (QDROs)

If you require a detailed review of your employee plans, trust documents or the documents used to communicate the plan details to your plan participants, our team is prepared to help. By addressing issues that arise with your current plans and providing proactive counseling and advice to avoid problems in the future, we can help you achieve compliance with applicable laws and regulations. Our attorneys work with your team of in-house counsel, human resources and benefits employees, consultants and other service providers to provide workable solutions to your benefit plan issues.

Fiduciary Advice

Managing plan asset investments as an ERISA fiduciary is a serious responsibility. Our ERISA lawyers, in cooperation with our Investment Management Team, represent a wide range of investment management and private equity clients, helping them stay out of ERISA or live under it - as circumstances dictate. We regularly advise on a wide variety of fiduciary issues, including:

• fund formation and LP investment
• fund transactions and investments
• "Plan Asset" rules and structuring

In addition, we represent banks and other financial institutions, managers, fund sponsors, trustees and other plan fiduciaries. Our services for those clients cover:

• day-to-day counseling
• proprietary products
• swaps, ISDAs and similar instruments
• Department of Labor (DOL) exemption requests and requests for advice

Our relationships with DOL personnel are extensive, and we are frequently on panels with senior policymaking officials. One of our partners recently testified before Congress regarding controversial DOL regulations governing investment advice, and we have been involved in key bar association and other activities that help shape the application rules.

We are dedicated to helping you accomplish the following:

• develop a clearly delineated explanation of your fiduciary duties
• strategize methods for avoiding personal exposure
• create a 404(c) participant-directed investment plan to reduce your liability in volatile market conditions
• formulate procedures aimed at preventing prohibited transactions
• correct past fiduciary breaches and provide legal support in any audits or claims you might face

Establishing an ESOP

You can also rely on the Holland & Knight team for counsel on employee stock ownership plans (ESOPs). We can advise you on each stage of the ESOP cycle – from feasibility studies to plan termination – and will involve other highly experienced attorneys from our Mergers and Acquisitions, Public Companies and Securities, Taxation and Banking and Finance practices when necessary.

Employee Health and Welfare Plans

Our team is prepared to work closely with you to meet your objectives in the design, implementation, administration or review of health and welfare benefits for your employees. Our legal services in this area include:

• drafting and reviewing cafeteria plans, dental and disability plans, accident benefits, health and life insurance, vacation pay, prepaid legal services, severance pay, dependent day care and scholarship funds
• drafting welfare plan documents, trusts, summary plan descriptions and other important plan communications
• reviewing existing plans and accompanying documents to ensure consistency and adherence to ever-changing employee benefits laws and regulations, including the PPACA
• reviewing compliance with government regulations, including the ADA, ADEA, COBRA, ERISA, HIPAA, FMLA and USERRA
• modifying existing plans to meet changing regulations and workforce requirements
• evaluating ways to defray health benefit costs via health reimbursement or flexible spending accounts
• assisting with all administrative matters, from enrollment forms and COBRA requirements to Qualified Medical Child Support Orders and retiree benefits

When Problems Arise – Experience Is Beneficial

Because employee benefit plans are complex, mistakes are sometimes made in the way they are administered. When problems arise, you need swift, thorough corrections made on your behalf – and advice on how to avoid mistakes in the future. Our ERISA law team has extensive experience with various correction methods, including the Department of Labor’s Voluntary Fiduciary Correction Program and Delinquent Filer Voluntary Compliance Program, as well as the IRS’s Employee Plans Compliance Resolution System. Whenever possible, our goal is to help you design administrative procedures that will prevent future errors from occurring.

Executive Compensation Advice

Companies require broad and flexible compensation policies to hire and retain first-rate executives. Our team can help you draft and implement the funding mechanisms for executive compensation plans. These include deferred compensation agreements, long-term incentive plans, stock options and consulting agreements, among numerous other employee benefits instruments. Our team also has experience with termination agreements and change in control agreements.

In addition, we take steps to maximize the deductibility of executive compensation for our corporate clients’ highest paid employees, assist with “golden parachute” and “golden handcuff” implications of your compensation plan, and properly manage the necessary disclosures for SEC filings, proxy materials and prospectuses.

Vigorous Representation in Audits and Dispute Resolution

Our benefits team members have extensive experience in the representation of clients before the IRS and the Department of Labor. Should you face an issue resulting from an audit that requires dispute resolution, our employee benefits attorneys are dedicated to working hard to achieve success for you.

ERISA and Employee Benefits Litigation

We have significant experience in all aspects of benefits litigation, from individual claims for long term disability, severance, medical and death benefits to single-plaintiff and class-action benefit claims, fiduciary duty, discrimination, reporting and disclosure, pension and welfare plan interpretation, executive compensation and stock options and multiemployer plan claims. Our full-service litigation practice extends to complex issues such as class-action law and procedure, ERISA pre-emption and ERISA’s relationship to state laws and the nuances of the ERISA remedial scheme.

Our employee benefits team includes seasoned litigators who also have exemplary working knowledge of the complex tax and regulatory issues involved in employee benefit plan design and administration. To take maximum advantage of our experience and insight, our diverse team of planning, benefits and litigation lawyers regularly collaborate on client strategies and solutions to ensure our legal services meet our clients' business objectives.