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California's Independent Contractor Decision: What It Means for ERISA Plans

"[W]hat is the likely impact of the Dynamex ruling on employee benefit plans? Will employers have to offer coverage retroactively to the hire date of the now-reclassified independent contractors? Must they offer coverage going forward? ... As a starting point, it is helpful to look at how most plan documents currently define 'eligible employee' and how they treat the issue of workers who were engaged as independent contractors, but later are classified as common law employees."

Not 'Wired at Work'? New DOL E-Disclosure Rule Is Here to Help

"Each plan sponsor will need to evaluate its plan participant sub-populations before choosing which e-disclosure safe harbor method or methods to use for retirement plan disclosures going forward.... [An] engineering firm whose entire population of active employees is wired at work may be content with the 2002 safe harbor e-disclosure method and may not want to switch to the 2020 safe harbor method, which would require an initial paper notice to all plan account holders notifying them of the new e-disclosure procedures. However, the same employer may want to switch to the 2020 safe harbor method for former employees who retain account balances, and for beneficiaries and alternate payees."

DOL's Long-Awaited Electronic Disclosure Rule for ERISA Retirement Plans Is Finally Here!

"[T]he new E-Disclosure Final Rule does not apply to documents within the jurisdiction of the IRS such as 401(k) plan safe harbor notices, ERISA 204(h) notices, special tax notices relating to plan distributions and notices to interested parties required in connection with IRS determination letter filings. The IRS has indicated that it intends to issue additional guidance regarding the electronic delivery of participant notices required under the Internal Revenue Code, thus plan sponsors should keep an eye out for this new guidance."

DOL Unveils New ESG Proposal, Raising Significant Questions for ERISA Fiduciaries and the Industry

"If the proposal is adopted as-is, plan sponsors, other fiduciaries and the industry, will face a tall order in incorporating ESG factors, especially in furtherance of policy or other non-financial goals (e.g., impact investing), with respect to both the [1] management of plan assets and [2] selection and monitoring of plan investment options available under individual account plans[.]"

Essential Requirements for ERISA Health Plan Subrogation Language

Excerpt: A good subrogration clause will do the following: [1] Disclaim the 'make whole' doctrine.... [2] Disclaim responsibility for attorneys' fees, e.g., the 'common fund' doctrine [3] Authorize the pending of claims until accident information is provided[.] [Scroll down the page to November 8 entry]

September 30, 2020 is CalSavers Deadline for Large Employers

"If your business has over 100 California employees, September 30, 2020 is the deadline to either register with (or certify as exempt from), the CalSavers Retirement Savings Program (CalSavers).... If you have a retirement plan in place, including a 401(k) plan, SEP or SIMPLE-IRA, you should register as exempt, even if your retirement plan does not cover all of your employees. If you are exempt you cannot auto-enroll employees who are not covered by your retirement plan. However, you may voluntarily notify employees that, if they enroll in CalSavers individually, your business will forward contributions to CalSavers for them."

Notice of Exchange Penalties: DOL FAQ Says There Aren't Any, But Timely Compliance is Key

"This information, at this late date, is more confusing than it is helpful to employers who have already invested significant resources in preparing to deliver the Notice of Exchange. The wording of the FAQ says that employers 'should' rather than 'must' provide the Notice, which is misleading ... Particularly for employers with pre-existing group health plans, the Notice of Exchange potentially could be viewed by the DOL as within the scope of the employer's required disclosures to participants and thus within the scope of an ERISA audit[.]"

'Notice of Exchange' Deadline Postponed Until Further Guidance Is Issued

"The new guidance states that the Department of Labor may issue a model Notice of Exchange along with the coming regulations, but in the meantime suggests that employers may want to adapt for this purpose a proposed template that summarizes employer-sponsored coverage options for purposes of determining eligibility for financial aid on the exchanges."

IRS Says ACA Large Employer Tax Liability is Forever

"Applicable Large Employers have advocated that Form 1094-C and attached employee statements are returns that, when filed, trigger the three-year statute of limitations under Code Section 6501.... [CCM 20200801F] concludes that this is not the case, because the data disclosed on Forms 1094-C and 1095-C is insufficient to calculate tax liability ... Applicable Large Employers ... now have an added incentive, in the form of minimizing open ended potential tax liability, to ensure that they are offering affordable, minimum value or higher coverage to their full-time employees for so long as the ACA's ESRP provisions remain in place."

It's Time for ALEs to 'Do the Math' on Controlled Group Status

"A definitive answer to the question of aggregated group status is required in order to file the Form 1094-C transmittal for employee statements (Forms 1095-C), which is due in hard copy by May 31, 2016, or via e-filing by June 30, 2016.... Specifically, Part II of Form 1094-C, line 21 asks whether the 'ALE Member' filing the Form is part of an 'Aggregated ALE Group,' and if the answer is yes, the ALE Member must identify, in Part III, the name and EIN of all other ALE Members of the Aggregated ALE Group. Form 1094-C, like other IRS forms, must be signed under penalty of perjury."