Employee Benefits and Executive Compensation
- Holland & Knight’s Employee Benefits and Executive Compensation Team counsels clients on qualified and nonqualified retirement plans, including 401(k) profit-sharing plans and employee stock ownership plans (ESOPs), and provides advice on plan asset investments, executive compensation, employee plans, health and welfare benefits and breach of fiduciary responsibilities.
- Our team conducts detailed reviews of current employee plans, handles the planning and design of new or modified plans and takes the appropriate steps to ensure that plans comply under ERISA, the Internal Revenue Code and other applicable statutes and regulations.
- We have extensive experience guiding clients through local and national benefits and compensation considerations and work vigorously to achieve success for clients in litigation, arbitration and mediation proceedings.
- Members of our Employee Benefits and Executive Compensation Team regularly collaborate with attorneys from our Mergers and Acquisitions, Public Companies and Securities, Private Equity, Taxation, Corporate Services, Banking and Finance, and Litigation practices on client strategies and solutions to ensure our legal services meet our clients' business objectives.
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.
Holland & Knight is pleased to have received a national first-tier ranking in Employee Benefits (ERISA) Law, as well as high metropolitan rankings in Chicago, Miami and Tampa in the U.S. News – Best Lawyers® "Best Law Firms" guide (2018).
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.
Mergers and Acquisitions and Private Equity Transactions
Drawing on the strengths of their highly technical background, our attorneys are called on to provide high-quality benefits and compensation advice in large M&A and private equity transactions, including corporate takeovers, spinoffs, divestitures, IPOs, going-private transactions, and restructurings. In advance of these milestones, our team conducts rigorous due diligence and analysis, and works with key stakeholders to design and draft plans and benefit programs. We are also vital partners with clients during the implementation and post-integration stages so that our advice is tailored to their unique goals. With heightened scrutiny and regulations, our team is very sensitive to upholding processes and structures to give clients the support they need to focus on bigger business objectives, as well as to lessen potential litigation, liabilities and inquiries.
Our proactive approach to counseling clients is praised for helping clients in sensible, timely ways to make even the most complex and technical aspects of a change in control go more smoothly. With decades of experience, we are savvy in scaling our team to assist with the action items beyond the benefits basics, such as human resource concerns, accounting and actuarial considerations, and tax implications. This added value is a hallmark of our group that draws on multidisciplinary resources throughout the firm.
Plan Compliance and Maintenance
Holland & Knight's Employee Benefits and Executive Compensation Team 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.
Helping You Prevent Breach of Fiduciary Responsibility
Managing plan asset investments as an ERISA fiduciary is a serious responsibility. Whether you are a named fiduciary, plan administrator, investment manager or advisor, trustee or other ERISA plan fiduciary, you can be confident that our ERISA attorneys are committed to providing practical guidance to help you avoid liability from a breach of your fiduciary responsibilities. 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 those changes required by the Affordable Care Act (ACA)
- 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 Internal Revenue Service's (IRS) 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.
Affordable Care Act (ACA)
The ACA has increased healthcare costs for many companies and added nuances to the already complex legal regime around health and welfare plans. Continued political debate and uncertainty around the viability of the law frustrate compliance planning efforts.
We can provide experienced advice and counsel on a broad spectrum of issues related to the ACA. This includes working with employers to ensure the benefits they are offering are ACA compliant, assisting them in meeting new reporting obligations to the IRS and minimizing liability under the ACA’s employer mandate. Our team includes the lead executive responsible for overseeing ACA implementation at the IRS who played an integral role in crafting the regulations now governing employers.
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.