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'Trump Accounts': Tax-Advantaged Savings Accounts for Children

"Employers may contribute up to $2,500 per year (adjusted for inflation), on a tax-free basis, on behalf of their employees' dependents or their teenage employees. Contributions in excess of $2,500 will be treated as taxable income to the employee. Employers can claim a tax deduction for such contributions as a business expense. However, employer contributions will require a written plan document, and the program will have to comply with certain rules applicable to dependent care FSA accounts under Code Section 129(d) (e.g., related to nondiscrimination and statement of expenses)."

Group Health Plan 'Gag Clause' Compliance Attestation Due by the End of 2023

"The initial attestation will require reviewing contracts in effect on or after December 27, 2020, for any offensive gag clause language. Amending existing contracts may be necessary to ensure ongoing compliance. The entities that are required to submit an attestation include both self-insured and fully insured group health plans."

Jury Trials in the ERISA Context: An Anomaly or a Trend? (PDF)

"Recently ... a court in the U.S. District Court for the District of Connecticut joined the U.S. District Court for the Southern District of New York to buck the weight of authority and allow for a jury trial for at least some ERISA claims. These cases raise the question of whether there has been a meaningful shift in how courts view fiduciary breach claims or whether these cases are outliers, and why."

The End of the COVID-19 Emergencies: Considerations for Health and Welfare Plan Administrators

"Plan sponsors and administrators should consider ... [1] How will the plan cover out of network COVID-19 tests, vaccines, and boosters going forward? ... [2] How and when to inform plan participants and beneficiaries [about] ... what will change for them under their plan(s).... [3] Whether to proactively extend deadlines for participant claims and appeals coming up prior to May 11, 2023."

Assessing a Plan Administrator's Discretion to Identify Severance Plan Participants (PDF)

"[A] plan sponsor can give itself too much discretion and thereby transform the plan into more of an ad hoc arrangement than an ERISA welfare benefit plan. This column looks at some recent case developments that examine how this balance can be struck in the context of severance plans."

Puerto Rico Exits Bankruptcy, Solidifying the Protection of Retirees' Interests

"Against the backdrop of this massive discharge of debt, the accrued pension benefits of 167,000 government retirees are fully protected from any reductions. This result is particularly remarkable considering the Commonwealth's three retirement systems were essentially completely broke (average of 1.5% funding level) as of the commencement of the Title III case."

Arbitration of ERISA Claims, Part 2: Courts Continue to Grapple with Competing Considerations (PDF)

"[T]he Seventh Circuit ... reasoning differs slightly from the lower court in at least one significant respect that is supportive of the idea that ERISA claims can be arbitrated. But in other respects, the Seventh Circuit's decision points to some possible limits on what plan sponsors may require be arbitrated. The upshot is continued uncertainty that plan sponsors will have to navigate to the extent they wish to require arbitration of ERISA claims." [Smith v. Bd. of Directors of Triad Mfg., Inc., No. 20-2708 (7th Cir. Sept. 10, 2021)]

The 'Defensive' 401(k) Plan (PDF)

"The Roberts Court's ERISA jurisprudence has re-awakened the idea that one of ERISA's key tenets is that a plan's written terms matter.... This column identifies some ways in which plan sponsors can amend plan language to manage and/or mitigate exposure to claims for benefits and other ERISA claims."

ARPA COBRA Subsidy Guidance: IRS Notice 2021-31 and Emergency Relief Notices (PDF)

"This alert provides an overview of the reduction in hours and involuntary termination guidance contained in [Notice 2021-31], breaking down the types of terminations or reductions in hours that would give rise to COBRA subsidy eligibility during the subsidy window. This alert also covers the interplay between [the Act, the EBSA and IRS Joint Notice of May 4, 2020, and EBSA Disaster Relief Notice 2021-01]. These aspects of the Notice encompass myriad human resource scenarios that employers encounter on a day-to-day basis."

Arbitration of ERISA Claims: Courts Grapple with Competing Considerations (PDF)

"[Two federal circuits] have reached opposite conclusions regarding whether ERISA claims may be subject to arbitration where the arbitration clause is contained in the governing plan document. This column [reviews those decisions and] the respective arguments that may determine whether or not arbitration of ERISA disputes remains a viable avenue for plans sponsors."