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ERIC and Epstein Becker Green Team Up to Begin Publication of 'Benefits Litigation Roundup' (PDF)

The inaugural issue of this quarterly publication contains six case summaries and a featured article: "Benefit Claim Denial Litigation After Glenn and Conkright."

DCALTA's Jonathan Epstein Explains Alternative Investments for Retirement Plans

"Like with traditional investments, a similar due diligence process should be applied when selecting and monitoring these types of investments. One main consideration is analyzing what risk/return expectations are desired of each non-traditional investment being considered. Other key factors that plan fiduciaries should consider include cost, liquidity, transparency, and the ability to analyze risk-adjusted net performance [said Jonathan Epstein, president of DCALTA (the Defined Contribution Alternatives Association)]."

Green Light for AHPs

"The final rule [requires] that a group or association of employers have at least one substantial purpose other than the provision of health benefits to its members. This is defined quite broadly, and could include simply offering conferences, classes or educational material on business issues to members or conducting public relations activities such as advertising and education on business issues. The primary purpose of the group can be the provision of health insurance."

Proposed Regs Limit Green Energy Tax Credits for ERISA Plan Investors

"The Inflation Reduction Act of 2022 (IRA) provides generous tax credits for certain clean energy investments (e.g., 50% of the applicable basis in wind and solar farm projects).... [T]he proposed regulations essentially require direct ownership of the green energy project in order to receive Direct Pay tax credits, but ERISA funds generally must use indirect investment vehicles ... in order to avoid prohibited transaction and fiduciary burdens.... The proposed regulations do not provide a mechanism by which investing ERISA funds and tax‐exempt entities may receive Direct Pay IRA tax credits when they invest indirectly."

Stability in Percentage of Multiemployer Plans in the Green Zone (PDF)

"[A] majority of multiemployer plans -- 64 percent -- are in the green zone.... The average Pension Protection Act of 2006 funded percentage has also remained stable: 86 percent for zone certifications filed in the 12-month period ending on September 30, 2016 compared to 87 percent for the 12-month period ending on September 30, 2015. The percentage of plans in the red zone is 25 percent, with 10 percent of all plans certified as 'critical and declining.' ... These results are similar to the prior 12-month period."

Spring 2016 Zone Report: Multiemployer Plans Are Predominantly 'Green' (PDF)

"[W]hile 64 percent of plans are in the green zone based on all zone certifications filed in the 12 months ending in March 2016 ... just under half of all participants are in plans in the red zone based on the full set of plan data. Significantly, about half of these red-zone participants (23 percent overall) are in plans that are considered to be 'critical and declining.' "

It's Easier to Apply for Green Card Than Obamacare

"If you thought nothing could be more tedious than filling out your tax forms, just wait until you try to apply for health insurance through the [ACA]'s new exchanges. The draft of the paper application is 15 to 21 pages, depending on whether someone is applying individually or for their family. That's nearly six times longer than the instructions for a green-card application. (There are also videos of the process.)"

Red, Yellow, and Green: A Taxonomy of 401(k) Portfolio Choices

Excerpt: One measure of financial literacy is the quality of portfolio decision-making in 401(k) plans. Applying a qualitative framework to a dataset of nearly three million 401(k) accounts, we estimate that 43% construct 'green' portfolios with balanced exposure to diversified equities, while 26% construct 'yellow' portfolios with possibly too-aggressive or too-conservative equity holdings. [WP2007-14]

Green on Ethical Incentives for Employers to Adopt Legal Service Plans -- Abstract and Link

Excerpt: Michael Z. Green (Texas Wesleyan) has posted on SSRN his forthcoming piece in the Brandeis Law Review: Ethical Incentives for Employers in Adopting Legal Service Plans to Handle Employment Disputes.

Health Care Without the Hospital: ChatGPT Health and Claude Go Direct to Consumers

"While ChatGPT Health and Claude for Healthcare offer useful capabilities, they also present risks and limitations that users, healthcare providers, and organizations should evaluate before adoption."

New York Employers: Prepare for Paid Family Leave Adjustments for 2026

"The changes set to take effect on January 1, 2026 once again increase the employee benefit and contribution caps established by the PFL program.... PFL benefits are separate and distinct from those provided by the New York State Paid Sick Leave (PSL) law, under which accrued benefits vary on the basis of employer size. "

IRS Gives Green Light for Employee Choice Between Different Pre-Tax Benefits

"[PLR 202434006] approved an employer's program allowing employees to allocate an employer contribution among the 401(k) plan, retiree health reimbursement arrangement (HRA), health savings account (HSA), or educational assistance program (offering student loan repayments). The PLR provides welcome guidance to employers seeking to offer more tailored benefits to their employees."

DOL's Final Rule Gives ERISA Fiduciaries Green Light to Consider ESG Factors When Selecting Investments

"The 2022 Final Rule removes the emphasis on the pecuniary factors in selecting ESG investments and is intended to provide clarity on how ERISA's fiduciary duties of prudence and loyalty apply to selecting investments and investment courses of action and exercising shareholder rights such as proxy voting. The 2022 Final Rule will be effective January 30, 2023, except for a delayed applicability until January 30, 2024 for certain proxy-voting provisions[.]"

DOL Gives a Green Thumbs Up to ESG

"[T]he Final ESG Rule moves the ball away from a 2020 DOL rulemaking in this area and toward a position that is more supportive of ESG investing. The Final ESG Rule provides fiduciaries with an interpretation of ERISA’s fiduciary standards that could allow for the consideration of ESG factors without violating those duties."

What ARPA Means for Green Zone Pension Plans

"[1] PBGC Multiemployer Insurance Program premiums will increase to $52 per participant after December 31, 2030 (up from $31 in 2021).... [2] PBGC Multiemployer Insurance Program will be solvent for longer. CBO estimated that ARPA would push PBGC insolvency from 2027 to the mid-2040s.... [3] Plans will have the chance to comment on agency regulations."

DOL Green Lights Telemedicine Visits to Support FMLA Leave, Allows Electronic FMLA Posting

"[T]he DOL issued an FAQ earlier this spring greenlighting telemedicine visits under the FMLA through December 31, 2020. Yesterday's guidance now extends this concept permanently. In this latest guidance, however, DOL made clear that video conferencing would be critical to meeting FMLA's requirements, noting that 'communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an 'in-person' visit.' ... DOL also was wise to address an employer's posting requirements in an increasingly remote workplace."

DOL Gives Green Light to Private Equity in DC Plans

"Defined contribution plan sponsors can include certain private equity strategies into diversified investment options, such as target date, target risk or balanced funds, while complying with ERISA ... In [Information Letter 2020-06-03], the [DOL] said when evaluating whether to include a particular investment vehicle with an allocation of private equity as a designated investment alternative, a plan must evaluate the risks and benefits associated with the investment alternative."

IRS Gives HSA-Compatible Plans Green Light to Pay for COVID-19 Services Below the High Deductible

"The decision by the IRS to allow HDHPs to pay for treatment of COVID-19 below the high deductible opens the door for employees and their dependents to, among other things, receive diagnoses and treatment for the coronavirus via telemedicine portals, with no cost sharing required.... Some insurers and claims administrators appear to be waiving cost sharing for all telemedicine visits for a period, whether or not related to treatment of the coronavirus. Waiving cost sharing for telemedicine visits unrelated to the virus falls outside [the relief provided in IRS Notice 2020-15] and, to the extent the patient has not yet met their high deductible, appears to threaten the qualified nature of the HDHP."

PBGC Gets Green Light to Seek Assets from Former Plan Sponsor

"The [PBGC] can go after the owner of a company that took more than two decades to shut down its pension plan ... Liberty Lighting began liquidating in 1991 but never informed the PBGC. Following the company's dissolution, owner Joseph Wortley filed for personal bankruptcy. Pension benefits were paid until plan assets were depleted, and the plan was terminated in July 2012[.]" [PBGC v. 20 SE 3rd St LLC, No. 18-81009 (S.D. Fla. Nov. 22, 2019)]

$60M Deal Gets Green Light in SSM Health 'Church Plan' Suit

"If approved, the settlement would require SSM Health to commit to fully funding its retirement plan for 10 years. The deal would also force SSM Health to pay $15 million to the plan each year from 2019 to 2022, bringing the hospital system's total settlement-imposed plan contributions to $60 million."