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.