Expanding Plaintiffs’ Litigation – Risk Management For Employers; Upcoming Seminar

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Building Defenses Against Plaintiffs’ Claims As we previously reported, the plaintiffs’ bar has discovered ERISA, and lawsuits — class action and individual — against employers alleging ERISA violations have become an epidemic.

In previous e-Alerts and at our Seminars we have emphasized particularly protecting against the risks posed by lawsuits alleging ERISA fiduciary breaches concerning retirement plan investments, retirement plan fees, and retirement plan service provider quality.

Of late, the lawsuits have expanded to include claims that employers’ ERISA retirement and health and welfare plan documents and procedures are faulty.  In our experience, even in cases in which employers’ governing plan documents are adequate, their Summary Plan Descriptions, Summaries of Benefits and Coverage, administrative forms, Form 5500s, Investment Policy Statements, committee charters, and employee communications either violate some legal requirement, contain less-than-precise language subjecting the employer to liability or potential liability, or are internally inconsistent.

We urge our clients to ensure that all of the documentation and procedures for their employee benefit (and executive compensation) plans are compliant, up-to-date, accurate, and internally consistent. Similarly, we encourage our clients to ensure that their ERISA fiduciary liability insurance policies and their employee/Board indemnification policies are adequate in light of this spate of lawsuits.

Please contact us if you would like us to perform a risk management diagnostic of your documents and procedures as a way to build protections against this growing litigation threat.

Upcoming Seminar.  As previously announced, we’ll be holding our next clients and friends seminar at the BWI Marriott on Thursday May 11, 2017, from 8 a.m. to noon.  The following are some of the topics we’ll cover at the seminar.  (As always, we expect to add topics to reflect developments between now and May 11.)

I.     Health and Welfare Plans

  1. Continuing Guidance for Opt-out Payments, SCA Cash-in-Lieu Payments, and the Like
  2. Proposed Changes to Form 5500
  3. Retiree Coverage and Special Rules for Plans Covering One or Fewer Active Employees
  4. Spotting and Avoiding MEWAs
  5. A Review of the Employer Mandate Rules Mid-year Changes Provisions
  6. Formal Marriage, Common Law Marriage, Domestic Partners and Civil Union Partners
  7. ACA Reporting Update
  8. Updates on Transgender Benefits Coverage
  9. The HFSA Debit Card Rules
  10. Eligibility Exclusions for Individual Employees
  11. Pitfalls of Plan Vendor Agreements
  12. Independent Contractors, Leased and Seasonal Employees, and Other Special Categories
  13. Update on Wellness Rules
  14. The Updated Claims Procedures Rules
  15. Qualified Small Employer HRAs
  16. Church Plan Developments
  17. Accidental Multiple Employer Plans and MEP Compliance Issues
  18. State Escheat Laws Impact on ERISA Plans
  19. Update on the Status of the Affordable Care Act

II.     Qualified Retirement Plans

  1. The New DOL Fiduciary Rule
  2. EPCRS – New Fees and Options for Correcting Missed Deferrals
  3. New Rules Permitting Funding Safe Harbor Contributions, QNECs and QMACs
  4. Form 5500 Audit Exception and Other Form 5500 Issues
  5. A Review of the Electronic Delivery Rules
  6. Governmental Retirement Plans Update
  7. New Mortality Tables for Defined Benefit Plans
  8. Document Correction Window for 403(b) Plans
  9. Review of Permissible Mid-Year Amendments to 401(k) Safe Harbor Plans
  10. “Privatizing,” Expanding and Improving the Former IRS Determination Letter Program
  11. Investment Policy Statement Best Practices and Related Issues
  12. IRS’s New Hardship Documentation Examination Guidelines
  13. Update on Plaintiff’s Litigation

III.   Executive Compensation

  1. Update on 457(f), 457(b) and 457(e)(11)
  2. Update on 409A
  3. 501(c)(3) Employers – Compliance with the Intermediate Sanctions and Form 990 Rules
  4. Traps for the Unwary – Health and Welfare Severance Violations, Post-Employment Health and Welfare Coverage, Pre-tax Contributions from Severance Pay, COBRA Reimbursements, Etc.

IV.  Labor and Employment Law

  1. Employment Law in the New Administration: What to Expect
  2. Employer-Provided Leave and the ADA
  3. Expansion of Age Discrimination Claims and “Subgroup” Theories
  4. Status Update on the Changes to the FLSA Regulations
  5. OSHA Updates – Changes to Post-Accident Drug Testing and Recordkeeping Rules
  6. Updates to Independent Contractor Issues
  7. Sexual Orientation Discrimination Under Title VII
  8. New EEOC Guidance on Equal Pay and Pregnancy Discrimination
  9. Arbitration Agreements – Should You Ask Your Employees to Sign One?
  10. MD, VA and DC Updates – New Credit Inquiry Laws, Family Leave Laws, and More

Please contact Alison Christian at 410-321-9000 or achristian@smithdowney.com if you’d like to reserve a spot at the seminar.  As always, the seminar is free.