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Intermittent Leave Under the FMLA (PDF)

"[B]ecause of the nature of conditions that trigger the need for intermittent leave, it isn't always possible for an employee to work out a fixed reduced schedule with the employer.... Even so, employers should require employees to communicate with their supervisors in writing each time they must take intermittent leave without advance notice and explain the reason, consistent with the employer's attendance policy."

Distributing Assets When an Unrelated Employer Leaves a Multiple Employer Plan

"There are often good business reasons for allowing non-controlled group members to participate in a single pension plan. But circumstances change, and the time may come when it's appropriate for an unrelated employer to leave.... Assuming there is no other distributable event, there are three options to consider: [1] Complete plan termination; [2] Partial plan termination; [3] Spinoff termination."

Viewing a Retirement Plan Rollover Case Through the Prism of Regulation Best Interest

"[A] subsidiary of [TIAA] agreed to pay $97 million to settle [SEC] charges of misleading statements and inadequate disclosures relating to rollover recommendations to participants in TIAA record-kept employer-sponsored retirement plans.... [T]he underlying allegations provide a useful framework to review Regulation BI's four core obligations and how regulators may view misleading statements, inadequate conflict disclosures, and rollover recommendations that are alleged not to be in the best interest of a retail customer." [In the Matter of TIAA-CREF Individual & Institutional Services LLC, SEC Administrative Proceeding File No. 3-20392, Jul. 13, 2021]

Guide to Curbing Intermittent FMLA Leave Abuse (PDF)

[An] employee's ability to take small increments of FMLA leave sporadically generally result in administrative ... headaches for employers ... The FMLA offers a number of tools -- many of which are not widely known ... that you can use to discourage abuse of intermittent leave.

Changes to Limited-Scope Audits of Employee Benefit Plan Financial Statements Are Extended

"Initially, the new standards were to apply to audits of plan years ending on or after December 15, 2020, which means they would apply to 2020 plan year audits performed in 2021. However, due to the COVID-19 pandemic, the AICPA changed the effective date of the standards to plan years ending after December 15, 2021, extending the implementation of the standards for one year. Plan sponsors of plans subject to ERISA should be aware of the new responsibilities the standards impose on auditors, as these changes also indirectly create new responsibilities for plan sponsors."

Objective Versus Subjective Evidence in the ERISA Claims-Handling Process (PDF)

"Disability claimants regularly take the position that certain difficult-to-diagnose conditions ... cannot be proven through objective medical evidence. As such, they argue that it is unreasonable or arbitrary for an administrator of a disability plan governed by ERISA to require objective evidence of these disabling conditions. The notion that subjective symptoms must be given at least some level of consideration has gained traction in the federal courts over the last several years."

401(k) Plan Litigation Basics (PDF)

"[This article identifies] the basic standards that apply to 401(k) plan litigation, highlighting some of the important differences between litigation involving participants and beneficiaries on the one hand and litigation with a plan's service providers on the other."

An Employer's Crash Course on Withdrawal Liability (PDF)

"[T]his article [provides] a basic overview of withdrawal liability ... [1] what withdrawal liability is; [2] the issues businesses may face at different times; and [3] what happens when an employer is assessed liability."

Using COVID-19 Disaster Relief Funds to Assist Employees

"Section 139 disaster relief funds allow employers to make qualified disaster relief payments to employees ... [It] is prudent to set forth the terms of a disaster relief fund in a written document or policy ... [which] should describe the scope of the policy, the duration of the disaster relief fund, eligibility requirements for receipt of disaster relief payments, procedures to apply for payments, the timing and method of making payments, and limits on the amount of payments, if any.... A properly structured disaster relief fund will not be subject to ERISA."

401(k) Service Provider Contract Considerations (PDF)

"Whether a small plan with only a handful of participants, or a large plan with tens or hundreds of thousands of participants, every 401(k) plan needs to have certain services performed for it. A plan ... is in large part implemented by service providers, who operate pursuant to various agreements. In this Q&A, [the authors] will identify several important types of service providers and what to watch out for in their contracts."

Protecting Retirement Assets from Creditors (PDF)

"[D]uring a participant's life, ERISA provides the only guaranteed protection, subject to any applicable exceptions.... Most states ... do not expressly protect inherited IRAs, and some barely protect retirement plans.... [If] creditor protection is important for the beneficiaries of a retirement account ... the account owner should name an irrevocable trust as the beneficiary of the retirement plan, as the law is much more settled -- and debtor-friendly -- in the trust area.... NQDC plans face the biggest challenges."

Ninth Circuit Sends Charles Schwab ERISA Case to Individual Arbitration

"A U.S. Court of Appeals determined that arbitration on an individual basis is the proper forum for a participant’s claim that Charles Schwab breached its fiduciary duties and engaged in prohibited transaction under [ERISA] by holding proprietary funds in its 401(k) plan." [Dorman v. The Charles Schwab Corp., No. 18-15281 (9th Cir. Aug. 20, 2019; also unpub. memo. opinion)]

Protecting Retirement Assets from Creditors (PDF)

"[T]he Supreme Court decided in 2014 that inherited IRAs are not 'retirement funds' protected by the federal Bankruptcy Code, and the repercussions are still being felt.  Bankruptcy courts have now extended the Supreme Court’s reasoning to find that retirement accounts received through divorce proceedings are not 'retirement funds,' and state courts are wrestling with whether their exemption statutes similarly expose inherited IRAs to creditors."

IRS Expands Preventive Care Benefits That Are Not Subject to HDHP Deductible

"The IRS and Treasury used the following criteria to determine whether a treatment was preventive care: [1] the medical service or item is low-cost; [2] there is medical evidence supporting high cost efficiency of preventing exacerbation of the chronic condition or the development of a secondary condition; and [3] there is a strong likelihood, documented by clinical evidence, that with respect to the class of individuals prescribed the item or service, the specific service or use of the item will prevent the exacerbation of the chronic condition or the development of a secondary condition that requires significantly higher cost treatments."

Supreme Court to Review Eighth Circuit Decision Regarding Standing in ERISA Defined Benefit Plan Cases

"The defendants' initial motion to dismiss for lack of Article III standing was denied. During the litigation U.S. Bank voluntarily contributed enough money to make the plan overfunded and again moved to dismiss. This time the district court dismissed the breach of fiduciary duty claims as moot because the plaintiffs lacked any concrete interest in relief.... By focusing on injury and harm to the plan, the Eighth Circuit addressed hallmark issues of constitutional standing in a decision that it said was based on statutory standing." [Thole v. U.S. Bank N.A., No. 16-1928 (8th Cir. Oct. 12, 2017; cert. pet. granted Jun. 28, 2019)]

Supreme Court Fills Docket with ERISA Cases

"After more than two years since ... its last decision in a case involving [ERISA], the court's next term looks to be flush with ERISA issues.... The Supreme Court has granted certiorari in two ERISA cases in as many weeks, and it seems likely the court may grant review in at least one other case."

HHS Retreats on Controversial ACA Non-Discrimination Regs

"Covered entities will no longer need to mail beneficiaries, enrollees, and others, notices concerning non-discrimination and the availability of language assistance services (in 15 languages) with every 'significant' publication and communication larger than a postcard or brochure.... Health insurance programs administered by entities not principally engaged in providing health care will only be covered by the rule to the extent those programs receive Federal financial assistance from HHS.... The regulation did not contain a religious exemption ... The revisions add such an exemption."

Responding to 2016 '226J' Letters from the IRS: How to Reduce Your Penalties

"[Q]uestions to consider ... [1] Was a corrected Form 1094-C filed with the IRS for the 2016 year, and if so, is the IRS using the corrected data? ... [2] Is the plan at issue a calendar year plan? ... [3] Was minimum essential coverage offered to at least 95 percent of full-time employees during each calendar month of the year? ... [4] If minimum essential coverage was offered to 95 percent of full time employees, did the coverage provide minimum value and was it affordable? ... [5] Do any of the affordability safe harbors apply?"

VCP Submissions Must Be Submitted Electronically Beginning April 1

"To submit a VCP application on or after April 1, 2019, the applicant must [1] create an account at www.pay.gov ... [2] complete a Form 8950 using the website ... [3] documents relating to the VCP submission such as a description of failures, Form 14568 (Model VCP Compliance Statement), applicable schedules and other relevant items must be converted into a single PDF file and uploaded to www.pay.gov ... [4] pay the applicable user fee via the website."

Options for Construction Companies Facing Withdrawal Liability

"[1] Do nothing; [2] Pay it; [3] Use subcontractors; [4] A stock sale of the company; [5] An asset sale of the company; [6] Negotiate with the plan; [7] Terminate your obligations under the CBA."