Employee Benefits: Hot Practice

Originally published in Student Lawyer , December 2002
(Vol. 31, No. 4)

Hot Practice

By LISA STANSKY

Employee benefits lawyers protect the interests of workers and their employers

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If you haven’t thought much about employee benefits law, think about this: legions of Enron workers who watched their retirement savings go up in smoke. The practice may seem low profile, but the issues make front-page news.

One acronym sums up employee benefits law—ERISA. These five letters stand for the Employee Retirement Income Security Act of 1974, the federal statute that is the bible for lawyers who approach the specialty from every conceivable angle. The law comes into play if an employer offers employee benefits such as health insurance, pension plans, life insurance, and severance packages.

Employee benefits lawyers say their field offers lots of variety and personal satisfaction. The specialty covers transactional as well as litigation aspects of practice. It provides opportunities to represent workers as well as their employers.

“It’s a fun area,” says Nell Hennessy, chair of the ABA Section of Business Law’s employee benefits and executive compensation committee. “The law changes once a year or sometimes more than once a year.”

Hennessy outlines ERISA’s most relevant aspects as follows. One aspect involves issues such as employer disclosure requirements and fiduciary responsibilities, along with remedies available for violations of the law. Another element of ERISA sets the minimum requirements pension plans must adhere to in order to receive favorable tax treatment. Finally, the statute establishes rules that govern what an employer must pay if it terminates or withdraws from a plan. It also covers the contingencies that arise in the event of an employer’s bankruptcy.

Hennessy, president of Aon Fiduciary Counselors Inc. in Washington, D.C., says her work has touched on all of these broad areas. Even for those lawyers with a pure tax law or securities law practice, she says, ERISA issues are likely to arise. For example, Hennessy points out that more than a quarter of all U.S. stock is held by private and public pension plans, which are governed, of course, by ERISA.

How do lawyers divvy themselves up among the various aspects of employee benefits law? For the most part, there are distinct litigation and transactional sides of the practice. The same generally applies to the employer-employee sides of the fence.

The good news for those seeking employee benefits work is that most large firms have a practice section devoted to the field. Some boutique firms focus on ERISA work as well.

Most firms are likely to represent employers, but AARP senior staff attorney Mary Ellen Signorille says lawyers can develop a plaintiff-side (i.e., employee-focused) practice with a strong investment of diligence and patience. “People have done it and done it successfully,” says Signorille, co-chair of the employee benefits committee of the ABA Section of Labor and Employment Law.

Even while in law school, aspiring employee benefits lawyers can take advantage of the fact that ERISA law changes frequently. Students can make an effort now to keep abreast of new developments and market themselves as having cutting-edge knowledge of where the law is going, says Washington, D.C., lawyer David Levin, Signorille’s co-chair. Levin points to new privacy regulations governing employee health information as a good example of an area students can dive into now. “The regulations are huge,” he says. “It’s like a book.”

Where the jobs are

Levin advises that students look for job opportunities in the field with governmental entities that handle insurance, labor, or tax issues. At the state level, he says, students can identify the governmental unit that oversees the insurance industry. And at the federal level, students can look into regional or local offices affiliated with either the U.S. Department of Labor or the Internal Revenue Service.

Another angle of employee benefits law is taxation, which Phoenix lawyer Thomas Hoecker finds personally rewarding. The practice “offers an opportunity to help structure programs that benefit the employee and the employer,” says Hoecker, chair of the ABA Section of Taxation’s employee benefits committee. He points out that companies seek favorable tax treatment and need to make sure they’re in step with ERISA requirements to do so.

If you’re not comfortable dealing with tax issues at least some of the time, ERISA might not be for you, says Philadelphia lawyer Robert Abramowitz, chair of the ABA Health Law Section’s employee benefits and executive compensation committee. What he likes about his practice is that the client’s goal is clear: providing benefits to workers within the company’s fiscal parameters. Abramowitz represents mostly employers, including governmental agencies and nonprofit organizations such as hospitals and health systems.

By contrast, C. Mark Humbert doesn’t approach employee benefits issues from the “ERISA guru” perspective characteristic of tax practitioners. “My particular niche really is litigation,” says Humbert, who chairs the employee benefits committee of the ABA Tort Trial and Insurance Practice Section. The Walnut Creek, Calif., lawyer advocates on behalf of insurers and other plan-related entities.

New York lawyer Gloria Nusbacher, the Business Law Section’s representative to the ABA Joint Committee on Employee Benefits, is drawn to the executive compensation and securities law aspects of the practice. Part of the challenge comes from trying to parse the requirements of a host of laws and regulations in addition to ERISA, such as federal securities law.

A big issue today, she says, is whether corporate compensation committees are rubber stamping rather than scrutinizing executive compensation packages, some of which provide homes and huge stock deals to high-level corporate officers. Part of her work is to advise compensation committees on such matters.

Even if employee benefits law and its leading acronym aren’t on your personal radar screen, know that it’s something with a market. As Abramowitz says, “Virtually every firm that does corporate work needs to either have ERISA capability or an arrangement with a firm that has ERISA capability.”

Lisa Stansky (nolawritestuff@cs.com) is a lawyer and freelance writer in New Orleans.

Resources on Employee Benefits Law

A good place to begin is the Joint Committee on Employee Benefits (www.abanet.org/jceb), which coordinates the activities of the employee benefits committees of six ABA sections. Visit the web sites of each section to learn about practice-related developments, educational and networking opportunities, activities for law students, and other membership benefits.

The Section of Business Law (www.abanet.org/buslaw) has a committee on employee benefits and executive compensation. Section members receive a subscription to The Business Lawyer, a student-edited law journal, and Business Law Today, the section magazine. Membership is free for law students.

The Health Law Section (www.abanet.org/health) has a committee on employee benefits and executive compensation. Students can join the section for $10 and receive a subscription to The Health Lawyer.

The Section of Labor and Employment Law (www.abanet.org/labor) has an employee benefits committee. Section membership is $3 a year for law students and provides subscriptions to The Labor Lawyer and The Labor and Employment Law Newsletter.

The Section of Real Property, Probate, and Trust Law (www.abanet.org/rppt) has a series of committees under the rubric of “employee benefit plans and other compensation arrangements.” Students can join the section for $5 and receive Probate and Property magazine and Real Property, Probate, and Trust Journal.

The Section of Taxation (www.abanet.org/tax) has an employee benefits committee. A $6 annual section membership for law students provides subscriptions to The Tax Lawyer journal, The State and Local Tax Lawyer journal, and the section newsletter.

The Tort Trial and Insurance Practice Section (www.abanet.org/tips) has an employee benefits committee. Students can join TIPS for free and receive three periodicals: the Tort and Insurance Law Journal, The Brief, and The Source.

Not All Plan Failures are Created Equal: Inventing the Code §409A Correction Program

2008 Winner of the Paul Faherty Tax Law Writing Competition

INTRODUCTION

In March of 2008, Bear Stearns proved once again that no corporation is impervious to a financial collapse. Bear Stearns suffered an old-fashioned bank run when liquidity issues rendered it unable to meet creditor demands. This situation forced Bear Stearns to arrange a deal with JPMorgan Chase and the Federal Reserve Bank for financing. On the day this arrangement was announced, Bear Stearns’ stock plummeted 47 percent, closing at $30 per share. A few days later, Bear Stearns was sold to JPMorgan Chase for $2 per share. In less than 100 hours, Bear Stearns stock fell from $67 per share to $2 per share. For a company 30 percent employee-owned, the executives took action to salvage some value for their employees.

The Bear Stearns collapse can properly be characterized as an “Enron situation.” Bear Stearns was like Enron because the executives knew of the Company’s impending demise but failed to alarm the public or its shareholders. But Bear Stearns was different from Enron in an important way. Bear Stearns’ executives could not accelerate distributions from their non-qualified deferred compensation plans before its collapse without harsh penalties.

A few years before Bear Stearns collapsed, the fraudulent conduct of Enron executives brought to light how executives abused the Internal Revenue Code’s (the “Code”) deferred compensation principles. Enron executives accelerated distributions from their non-qualified deferred compensation plans, while the rank and file employees lost their retirement funds,which were invested in Enron when it went bankrupt.14 In contrast, Bear Stearns’ President and Chief Executive Officer Alan Schwartz reportedly lost $115.7 million dollars in the value of his holdings in company stock.

In the wake of Enron and before Bear Stearns’ collapse, Congress added Code §409A as part of the American Jobs Creation Act of 200416 in an effort to correct the system. The new requirements under Code §409A have created compliance issues for executives and their corporations. All non-qualified deferred compensation plans must comply with the requirements under Code §409A(a) in form and in operation. The esoteric nature of Code §409A(a) and its regulations make administration difficult. Consequently, the U.S. Department of the Treasury (the “Treasury Department”) and the Internal Revenue Service (the “Service”) have decided to create a program for correcting certain non-qualified deferred compensation plan failures.

Instituting a correction program for employee benefit plan failures is not a new concept.For several years, the Service has administered the Employee Plans Compliance Resolution System (“EPCRS”) to allow a plan qualified under Code §401(a) to correct certain failures that would otherwise cause the plan to be disqualified. While the current EPCRS program has undergone several reconstructions, the current Code §409A(a) correction program is in its infant stage. On December 20, 2007, the Treasury Department and the Service released Notice 2007-100 outlining a limited self-correction program.

This article reviews the current Code §409A(a) correction program and analyzes several issues related to creating the program, including whether the Treasury Department and the Service have legal authority to create it. The first section of this article discusses the history of Code §409A(a) and its requirements.

The second section reviews Notice 2007-100 and provides an analysis of several issues related to the Notice. The third section reviews a few authoritative and administrative issues related to the development of the Code §409A(a) correction program. The fourth section suggests measures that should accompany the creation of an effective correction program under Code §409A(a). The fifth and final section provides concluding thoughts on the issues discussed in this article.

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