Disability, Leave. jackson lewis Preventive Strategies and Positive Solutions for the Workplace ALL WE DO IS WORK

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1 Disability, Leave Employee and Health Benefits Management jackson lewis Preventive Strategies and Positive Solutions for the Workplace ALL WE DO IS WORK

2 jjackson Lewis provides comprehensive employee benefits legal services to plan sponsors, plan fiduciaries, insurers and service providers through its Employee Benefits Practice Group. Our Approach to Servicing Clients. Our Employee Benefits Practice Group handles a full spectrum of benefit law matters for a diverse mix of business clients on a nationwide basis. In keeping with the firm s overall philosophy, we approach even the most technical and complex benefit law questions with an eye toward preventive strategies minimizing the likelihood of liabilities associated with benefit claims, litigation and enforcement matters and practical solutions. Our benefits attorneys understand that their function is to work to engineer solutions, not to provide academic analysis. To this end, the orientation of the Employee Benefits Practice Group is to work with in-house benefits, human resources and legal professionals on employee benefits as corporate compensation techniques in an operational context. We also understand that efficient coordination with a client s actuaries, outside administrators, carriers and other benefits professionals is vital to fully servicing the needs of the client. In addition to advising business clients on the normal, dayto-day administrative and operational issues facing benefit plans, we are actively involved with our clients on a more strategic level. Our interest is always oriented toward the client s specific needs and concerns, and we actively work with our clients toward arrangements that suit those needs. The benefits litigation subgroup works with clients on matters ranging from agency proceedings and mainstream benefits claims to complex fiduciary and class and multi-plaintiff actions. The goal of the subgroup is to provide sophisticated and costefficient services by focusing on such strategies as aggressively limiting discovery to plan records and early pursuit of dispositive motions. The litigation subgroup works closely with the counseling subgroup to bring a comprehensive structure of legal resources to the client s issues and to advise the client on prospective preventive strategies. Our Employee Benefits Practice Group provides representation in virtually all aspects of employee benefits, including: Employer Sponsored Tax-Qualified Retirement Plans Our Employee Benefits Practice Group provides representation for a wide range of private, public, and not-for-profit employers in virtually all aspects of tax-qualified defined contribution plans and defined benefit pension plans (including cash balance and other hybrid pension plan formulas). Core Services for all Tax-Qualified Retirement Plans. The Employee Benefits Practice Group offers full service advice and counsel that includes all of the traditional core services for taxqualified retirement plans that sponsors and fiduciaries expect, including: Practical advice to solve plan administrative, operational and compliance issues; Implementation of legislative and other design changes; Custom plan document design, drafting and maintenance (including preparation of all required and plan sponsorinitiated amendments), and review of third-party prepared plan documents, trust agreements and participant communications; Preparation and updates of summary plan descriptions and summaries of material modifications; Preparation and submission of requests for IRS determination letters; Assistance with identification and correction of all types of plan qualification failures through the IRS Employee Plans Compliance Resolution System both self-correction and preparation and submission of correction program filings with the IRS; Review and determination of legal sufficiency of domestic relations orders; Assistance with IRS, Department of Labor (DOL) and Pension Benefit Guaranty Corporation (PBGC) examinations, compliance checks and proceedings; Assistance interacting with retirement plan auditors and plan vendors; Review and counsel on appropriate fiduciary governance structures, delegations, allocations and exercises of fiduciary authority; and Advice on plan interpretation and benefit claim issues, including aiding claim fiduciaries throughout the claim review process.

3 Defined Contribution Retirement and Savings Plans. In addition to our core services for these plans, we advise clients on traditional and emerging administrative and compliance issues that include: Fiduciary issues with respect to plan services and investments, including compliance with section 404(c) of ERISA, fee disclosures, etc.; Methods of minimizing fiduciary risks; Preparation and review of employee communications, including summary plan descriptions, enrollment materials and retirement plan notices (e.g., safe harbor contribution and automatic enrollment notices); Correcting fiduciary breaches (including late transmittals of salary deferrals), prohibited transactions and late Form 5500 filings, and related use of the Department of Labor Voluntary Fiduciary Correction and Delinquent Filer Programs; Preparation of applications for individual prohibited transaction exemptions; Review, drafting and negotiation of service contracts with trustees, record-keepers, investment advisers and other vendors; Nondiscrimination testing and compliance, including controlled group and qualified separate line of business issues; Implementation, analysis and management of plan terminations, spinoffs and mergers; and Implementation and maintenance of custom/private label target date funds. related to their defined benefit plans; Managing issues with defined benefit plans in a collectively bargained environment; Counseling on, and preparation of, all documents and participant communications for all aspects of plan termination proceedings, including working with actuaries, assisting insurance brokers on legal issues relating to terminal funding and the purchase of annuities for participants, and managing plans through the IRS approval and PBGC standard termination and benefit distribution processes; and Managing distress and ERISA Section 4042 plan terminations with the PBGC for financially distressed plan sponsors, including related interactions with the IRS. ESOPs, Eligible Individual Account Plans, and Other Plans Holding Company Stock We regularly advise shareholders, public and private/familyheld corporations, bank holding corporations, institutional and individual trustees, officers, directors, and other parties and investors (i.e., private equity groups) on designing, implementing and using ESOPs in various types of transactions, including mergers and acquisitions, estate and succession planning, hostile takeover bids, tender offers, shareholder liquidity/section 1042 of the Internal Revenue Code tax-deferred transactions, stock re-purchases by issuers, redemptions and recapitalizations, management and leveraged buyouts, and the use of ESOPs as an acquisition strategy. Defined Benefit Plans, Cash Balance and Other Hybrid Defined Benefit Plan Formats. The Employee Benefits Practice Group provides full service advice and counsel on all aspects of tax qualification, compliance, reporting and disclosure issues for traditional defined benefit plans, cash balance and other hybrid defined benefit plans. We work closely with actuaries to identify and resolve legal issues frequently incorporated into actuarial methodologies, and provide advice and counsel on increasingly complex legal problems arising out of plan funding (e.g., the funding based benefit limitations of section 436 of the Internal Revenue Code) and corporate transactions (including identifying and managing ERISA section 4062(e) facility closure and business cessation events). In addition to our core services for these plans, we have significant practical experience in: Special reporting and disclosure requirements; Assisting clients with reportable events and other filings Establishment and Transactional Services. Our ESOP establishment and transactional services include: Advice regarding feasibility of ESOP use; Advice regarding transaction and plan structures, structuring of the transaction, and related tax matters; Preparation of needed documents, such as the plan, trust, and transaction documents; Advice to boards of directors and corporate officers regarding governance and ERISA compliance and fiduciary issues; Negotiation and preparation of transaction and financing documents, and transaction-related opinion letters for lenders, corporations, institutional trustees and other entities; Drafting and assistance to plan sponsors and fiduciaries in making needed or desirable filings and requests with the IRS, the Employee Benefits Security Administration/DOL and other regulatory agencies;

4 Counseling regarding federal and state taxation, benefits law and other matters dealing with re-financings, sales and purchases of stock and related tax-deferral and tax deduction strategies, including Sections 1042 and 409(n) of the Internal Revenue Code; and Advice with respect to issues peculiar to S corporations and conversion from C corporations to S corporations and the related tax consequences and benefits, including the requirements under Section 409(p) of the Internal Revenue Code. ESOP Maintenance. Our ESOP maintenance services include: Continuing advice regarding tax-qualification requirements, filings and determination requests, on-going plan administration and participant relations, including distributions, diversification elections, and responding to participant claims; Continuing compliance with other applicable agency relations and regulatory requirements; Advice regarding continuing duties of boards of directors, ERISA fiduciaries, and corporate officers and directors with respect to the review of plan holdings and service provider performance and monitoring; and Advice regarding continuing litigation preventive strategies and procedures. Agency Investigations and Agency/Participant Litigation. We also advise corporations in preparing for and responding to governmental investigations of ESOPs, including DOL limited reviews and investigations, and IRS audits and appeals. In the course of our work in this respect, we defend ERISA fiduciaries and plan sponsors at the interview and administrative deposition stages of these proceedings. We also regularly defend employers, officers and directors, ERISA fiduciaries, and selling shareholders in litigation, including valuations of ESOP shares, ERISA fiduciary breach claims, and so-called stock drop litigation. Executive Compensation The Benefits Practice Group at Jackson Lewis has extensive experience advising clients regarding all types of executive compensation arrangements, including the following types of plans and agreements: Employment agreements; Retention agreements; Bonus plans, short-term and long-term incentive plans; Equity incentive plans; Change in control plans/agreement; Nonqualified deferred compensation plans (including top hat plans, supplemental executive retirement plans, and other excess benefit plans); Executive retirement plans; Severance agreements; and Rabbi trust agreements. We provide comprehensive legal support relating to these programs, including designing and complying with federal and state tax requirements, negotiating terms of the programs when applicable, and drafting agreements, plan documents and related documentation (e.g., election forms and plan summaries). We work with employers during the course of acquisitions and sales in addressing the tax and other liabilities associated with, and the changes necessary to, executive compensation arrangements. We also work with Jackson Lewis employment law attorneys to advise on restrictive covenants (such as non-compete, nonsolicitation and nondisclosure provisions) and related disputes. In connection with providing these services, the Employee Benefits Practice Group frequently advises on: All tax aspects of nonqualified deferred compensation arrangements, including Sections 409A and 457 of the Internal Revenue Code, and constructive receipt rules; Section 83 of the Internal Revenue Code (the taxation of restricted stock and other property transferred in connection with the performance of services); Section 162(m) of the Internal Revenue Code (structuring plans to maximize the deductibility of executive compensation); and Section 280G of the Internal Revenue Code (the taxation of golden parachute payments). Welfare and Fringe Benefit Plans, Including Health Care Reform Compliance and Audits We counsel clients on legal issues affecting the structure and administration of health and other welfare plans, and taxfavored fringe benefit plans, including: Compliance with laws and regulations affecting self-funded and insured group health plans, non-health group welfare plans, and cafeteria and flexible benefits plans (such as ERISA, COBRA, HIPAA/HITECH, PPACA/HCRA, and tax and applicable employment non-discrimination rules); Compliance with tax and other laws and regulations affecting tax-favored fringe benefit plans, including education

5 assistance programs, dependent care expense reimbursement programs, transportation allowances, and employee discounts; Analysis of tax consequences and other effects of providing coverage for non-traditional family structures, such as domestic partner benefit arrangements; Analysis of claims for benefits under the terms of the plan s governing instruments and applicable law, including aiding claims fiduciaries in drafting legally sufficient determinations; Strategies with respect to retiree and other post-employment health and welfare plan issues, including restructuring and termination of those arrangements in the collectivelybargained and non-collectively bargained contexts; and Coordination of projects with other benefit professionals (such as plan actuaries, record keepers and third-party administrators) to achieve cost efficient and sound results for administrative issues and planning projects. Health Care Reform Compliance. The Benefits Practice Group includes a Health Care Reform Task Force focusing on health care reform compliance. This Task Force follows federal health care reform legislative developments and legal decisions and monitors regulatory and other developments. The Task Force presents numerous seminars and webinars for employers on the impacts of federal health care reform and practical considerations and strategies for compliance (e.g., creation and distribution of summaries of benefits and coverage, allocation of medical loss ratio rebates, and calculating and reporting the cost of coverage). Our attorneys work closely with clients other professional service providers to ensure informed decision-making and timely adoption of plan amendments and implementation of other changes necessary for compliance (such as notice, disclosure and reporting requirements). The team also coordinates with our clients in-house counsel, labor attorneys, plan actuaries and other counsel regarding long-term compliance issues and strategies (e.g., employer responsibility penalties and high value coverage excise taxes). Tax and Agency Controversy We defend employers, plan sponsors, corporate officers and directors, and employee benefit plans in examinations, summons proceedings, and adversary proceedings and appeals initiated under internal agency procedures by federal or state agencies and courts of specialized jurisdiction. We work with clients in disputes involving penalties under the Internal Revenue Code and ERISA relating to fiduciary failures, disclosure and reporting failures, and tax-shelters before the IRS, Employee Benefit Security Administration and Office of Inspector General. We represent clients in deficiency and refund suits before the U.S. Tax Court, U.S. District Courts, the U.S. Court of Claims and the U.S. Court of Appeals for the Federal Circuit. Matters in which we represent clients before the IRS include: Examinations opened in connection with payroll tax, executive compensation arrangements and plan audits, including matters relating to annuity funded defined benefit plans under section 412(i) of the Internal Revenue Code, selffunded health plans governed by section 105(h) of the Internal Revenue Code, and funded welfare plans under section 419 of the Internal Revenue Code; and Matters pending before the IRS Office of Appeals regarding the above matters. Matters in which we represent clients before the DOL, Employee Benefit Security Administration include: Prohibited transaction penalty proceedings under section 502(i) of ERISA; Proceedings for civil penalties for violations by plan fiduciaries under section 502(l) of ERISA; and Defense of agency limited reviews and investigations. Matters in which we represent clients before state departments of insurance include: MEWA filing and licensing requirements; and MEWA investigation and compliance enforcement. Corporate Transactions, Workforce Reorganizations, Plan Terminations and Multiemployer Plans Mergers and Acquisitions. We counsel clients on all employee benefit issues affected by corporate transactions and reorganizations, including: Counseling with regard to negotiating strategies for either a buyer or seller in stock (or plan sponsor) and asset purchases, mergers and related transactional matters with a view to minimizing liabilities and federal and state tax consequences associated with employee benefit programs, including strategies for collectively bargained benefits and multiemployer plans;

6 Due diligence and analysis of legal obligations regarding pension, welfare and fringe benefit programs and their effects in the context of mergers, acquisitions and dispositions; and Negotiation and preparation of employee benefit related provisions of purchase and sale agreements and associated documents. Workforce Reductions. We advise clients on the design and implementation of workforce reduction programs, including: Analysis of legal obligations regarding pension, welfare and fringe benefit programs and their effects in the context of reductions in force, layoffs, facility closures, early retirement incentive programs and other workforce reorganizations; and Design, drafting and implementation of reduction in force severance benefit programs and early retirement incentive programs. Multiemployer Pension and Welfare Plan Liabilities. Related services include, for example, the following: Advice regarding multiemployer pension plan issues in collective bargaining matters, including counseling regarding withdrawal liability and funding implications imposed by the Pension Protection Act. This includes advising and negotiating replacement defined contribution arrangements and other forms of single employer pension plans as a substitute or replacement for participation in a multiemployer context. Advice regarding so-called hybrid multiemployer plans, where certain multiemployer plans have established second new employer liability and benefit pools. We have experience in negotiating transitions between an old employer pool and a potentially more advantageous new employer pool. Counseling on a broad range of matters, such as plan payroll audits and related issues respecting contribution and other funding obligations. Advice regarding multiemployer pension plan liabilities in a transactional context, whether involving an acquisition, divestiture or other changes. This includes structuring transactions in order to minimize the imposition of immediate or contingent withdrawal liabilities (whether as a consequence of complete, partial or mass withdrawals), including in light of the evade or avoid rules of section 4212(c) of ERISA. Contesting multiemployer pension plan claims for contributions, withdrawal liability or other funding obligations, including challenging such liabilities in statutory or contractual dispute resolution proceedings and related litigation. We have also contested on behalf of purchasers in the transactional context such claims based on non-statutory theories, such as the fund s assertion of a seller s withdrawal liability arising from a transaction against an unrelated purchaser under federal common law successor liability or alter ego theories. Advice to participating employers in financially troubled multiemployer plans, such as plans in endangered and critical status, as to available strategies and obligations. Representing employers in multiemployer plans with severely declining participating employer populations as to last employer standing obligations and issues. Representing employers in complex spin-offs of assets and liabilities from multiemployer pension plans to single employer plans as a means of satisfying multiemployer plan obligations and gaining greater control over investments and plan administration. Conversely, we have represented employers in the context of spin-offs of assets and liabilities from severely underfunded multiple employer pension plans (under single employer rules) to multiemployer pension plans. Representing employers and groups of employers in managed mass withdrawal liability transactions and other multiemployer plan restructurings. Advice regarding special industry rules under MPPAA, with significant experience and expertise in the trucking, construction, hotel and retail industries. Employee Benefits Litigation Our benefits litigation practice encompasses the representation of employers, plans, insurers, plan administrators, institutional and individual trustees, officers and directors, selling shareholders, and third-party administrators in ERISA and related benefits litigation in virtually all 50 states. This litigation involves both mainstream ERISA litigation as well as complex benefits litigation and class actions. Mainstream ERISA Litigation. Our ERISA litigation practice encompasses defense of single party as well as multi-party lawsuits associated with the entire range of employee benefits, including claims involving group health, life, disability, severance and other welfare benefits; executive compensation; pension benefits; and ERISA s non-interference provision. We also defend claims on individual policies of insurance which may be outside of ERISA and governed by state law. As noted above,

7 we represent plans, insurers, claims and plan administrators, third-party administrators, institutional and individual trustees, officers and directors, selling shareholders, and employers who are drawn into ERISA litigation. This representation typically involves defending claims for benefits due, for breach of fiduciary duty and for statutory penalties. We also represent insurers and plans seeking to enforce subrogation and reimbursement provisions and have filed interpleader actions across the country where insurers and plans are faced with conflicting claims for life and other benefits. Our experience includes active representation in state and federal courts and arbitral forums, including injunctive matters and appellate practice. Our experience also extends to actions involving claims under non-erisa arrangements, including claims in connection with governmental plans. We also have extensive experience defending benefit lawsuits in significant quantity and represent insurers and benefit plans on a national basis in numerous mainstream ERISA lawsuits involving disability, life and health claims. Our ability to handle a large caseload for a particular insurer, large employer or employer-sponsored plan is enhanced by our national presence and extensive substantive knowledge of ERISA s statutory and regulatory scheme and the constantly developing case law interpreting ERISA. Complex ERISA Litigation. We frequently represent clients in class actions and multi-plaintiff litigation in the context of benefit disputes. Our litigators routinely handle the full breadth of issues customarily encountered in such actions, including, for example, resolving the case through early dispositive motions which isolate key ERISA issues, defending and defeating class discovery and class certification, minimizing discovery issues encountered in complex litigation, evaluating structured class settlements and, of course, formulating and engaging in proactive strategies to achieve the goals of the client. We are uniquely qualified to handle multi-plaintiff and class action employee benefits litigation. Our litigators routinely confront procedural and practical issues common to large legal actions involving numerous plaintiffs, and our national presence and contacts allow efficient handling of multi-plaintiff and multidistrict litigation. We also have a national practice of defending ERISA claims brought by the Secretary of the Department of Labor with respect to ERISA fiduciary breaches, ESOP valuation disputes and related matters. Health Care Plan Privacy and Data Security We work closely with the Firm s Privacy, Social Media and Information Management Group on compliance with the HIPAA/HITECH Privacy and Security regulations with regard to health plans and health care providers. As part of the services we provide to clients in this area, we regularly track and report on HIPAA/HITECH and data privacy and security developments through a variety of media, including our Workplace Privacy, Data Management and Security Report. With regard to HIPAA/HITECH and employer sponsored health plans, we provide a full range of services to assist with compliance and preventive strategies, including: Drafting policies and procedures and updating plan documents to comply with the HIPAA privacy and security regulations, including the HITECH changes; HIPAA training; Breach notification response planning, as well as responding to data breaches, including notifications and related compliance and reporting requirements; and Negotiation, review and drafting of business associate agreements with plan vendors. Beyond the boundaries of plan activities, the Firm s Privacy, Social Media and Information Management Group provides comprehensive advice to employers to address concerns related to confidentiality, security, access and integrity of personal information generally, as well as confidential and proprietary company information. Contact Us To learn more about our services, please visit us online at jacksonlewis.com.

8 jackson lewis Preventive Strategies and Positive Solutions for the Workplace About Jackson Lewis P.C. With over 765 attorneys practicing in nearly 55 locations throughout the U.S. and Puerto Rico, Jackson Lewis provides creative and strategic solutions to employers in every aspect of workplace law. Recognized as the 2014 Law Firm of the Year in the category of Litigation Labor & Employment, and ranked in the First Tier nationally in the categories of Employment and Labor Law on behalf of Management in U.S. News Best Lawyers Best Law Firms, our firm has one of the most active employment litigation practices in the U.S. All we do is work Workplace law. a member of Copyright 2013 Jackson Lewis P.C. Attorney Advertising. Prior results do not guarantee a similar outcome. Dec13