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IRS Charts Path to a 401(k) Plan Student Loan Feature -- Will Plan Sponsors Follow?

"[A] number of open questions remain about how (and whether) to implement a program like the one described in the ruling, such as how to verify student loan repayments and what effect the program would have on other tax qualification requirements.... The IRS's ruling provides only limited guidance, and it fails to address how such programs comport with technical plan qualification requirements other than the contingent benefit rule."

Impact of Tax Reform on Some Private Company Equity Awards: Limited Income Tax Deferral Opportunities for Employees

"Additional guidance is needed to clarify, among other things, [1] the scope of the term 'transferable' in the context of transferability to employer corporations (including whether an exception will apply for customary provisions, such as an employer's right to repurchase an employee's stock after his or her employment relationship is terminated); [2] under what circumstances the provision requiring immediate income inclusion upon an individual's qualified stock becoming 'transferable' applies in light of the provision deferring income inclusion for five years after the first date on which the rights of the individual in the qualified stock become 'transferable'; and [3] when the holding period for qualified stock begins if a Section 83(i) election is made."

Employer Shared Responsibility: Have Penalties Been -- Or Will Penalties Ever Be -- Assessed?

"By not expanding the matching program, information return reporting leads to mismatches and unnecessary notices ... [The authors] have been unable to determine whether any of these types of penalties have been assessed, although based on the [Taxpayer Advocate Service], it appears that none have as of yet.... This is of particular concern to ALEs because efforts that must be taken to either correct or confirm that correct information was submitted to the IRS are costly and time-consuming."

The Fate of the ACA's Cost-Sharing Reduction Subsidies

"Elimination or delay of CSR payments will severely affect insurers that provide Marketplace coverage, leading, potentially, to an exodus from the individual market. If this occurs, costs could be shifted to employers and employees ... Healthy, sustainable Marketplaces provide flexibility in coverage options for part-time and former employees. Employers should expect these individuals to request coverage options in the absence of Marketplace or other individual coverage."

Recent HIPAA Privacy and Security Settlements, and Lessons Learned

"The settlements and penalties so far [in 2017] total over $11 million, with one of the settlements equaling the largest ever, at $5.5 million.... [L]essons and reminders [include]: [1] Don't use unsupported software (i.e., out-of-date versions) and apply patches regularly and promptly. [2] Train your workforce that idle curiosity ... is forbidden and a HIPAA violation. [3] Pay close attention to Internet scheduling tools, which can present special problems. [4] After routine maintenance, always check that firewalls are reactivated and security settings are appropriate. [5] Wipe any hard drives (which many copiers have) before reselling or returning to leasing companies."

Avoiding COBRA's Bite: Measures to Counter COBRA Class Actions

"Wal-Mart is just one of several companies that have faced putative class action complaints as a result of allegedly inadequate COBRA notices.... Among the allegations listed was that the required information was 'piecemealed' throughout Wal-Mart's notice, and the notice did not provide contact information for the plan administrator; the notice did not explain that a covered employee's spouse may elect continuation coverage on behalf of all other qualified beneficiaries; and the notice did not explain how electing continuation coverage would affect the qualified beneficiaries' future group health coverage rights."

SEC Staff Smooths the Way for DOL Fiduciary Rule Compliance

"The SEC's Division of Investment Management released a Guidance Update ... addressing certain procedural issues that have arisen in connection with the so-called 'Fiduciary Rules' adopted by the [DOL]. The Guidance Update will make it easier for mutual funds to create and administer compensation arrangements tailored to comply with the Fiduciary Rules. It does not address, however, the extent to which brokers may independently set their compensation."

New HIPAA Phase 2 Audits: Targets Notified by Email Only

"[E]ntities eligible for Phase 2 Audits should take the time now to ensure their systems, policies and implementation procedures are up-to-date and properly documented. Given the short timeline for Phase 2 Audits, once a target receives a notice of audit selection, it will likely be too late to bring its procedures into compliance with HIPAA Privacy, Security and Breach Notification Rules."

SEC Adopts CEO Pay Ratio Disclosure Rules

Topics include: [1] Where and how to make pay ratio disclosures; [2] Identifying the median employee; [3] How often must companies identify the median employee? [4] Limited exceptions for non-U.S. employees; [5] Calculating annual total compensation; [6] Must disclose methodology, assumptions and estimates; and [7] Exempt companies and transition periods.

SEC Proposes Rules to Implement Dodd-Frank Act Executive Compensation Clawback

"Although the timing for the new listing rules is uncertain, they could be effective within a year. Companies should consider taking the following actions: [1] Take a fresh look at their Section 16 officer group ... and develop additional record keeping procedures to track when Section 16 reporting status terminates. [2] Review existing clawback policies to consider what kinds of changes will be needed to conform to the new listing standards. [3] Review the current incentive compensation programs to identify various elements potentially subject to clawback as well as potential design changes. [4] Review the compensation committee charter to identify changes required for the committee's new responsibilities for overseeing enforcement of the clawback policy."