Barclay Damon provides comprehensive, practical, and effective advice on a full spectrum of employee benefit matters.
Barclay Damon attorneys have experience providing counsel to employers in connection with the design and documentation of compensation and benefit arrangements aimed at attracting and retaining key employees. Our attorneys have worked extensively on IRC section 409A compliance and correction matters, and assisted clients in the design and administration of long-term incentive compensation arrangements, nonqualified deferred compensation plans, qualified and nonqualified stock options, other equity and phantom equity programs, and supplemental employee retirement programs (SERPs).
Employee Stock Ownership Plans (ESOPs)
Barclay Damon’s employee benefits attorneys have extensive experience in the design, implementation, and administration of employee stock ownership plans. We advise business owners on the use of ESOPs as a tax-favored succession management strategy, ESOP-owned companies on the administration, structure, and documentation of their plans, and trustees and plan administrators on their fiduciary responsibilities. We manage ESOP transactions and DOL claims and investigations. ESOPs can provide a valuable retirement benefit to employees, while providing significant tax-savings to the sponsoring employer and former business owners. Our attorneys are well-positioned to help our clients achieve the substantial benefits of employee ownership. We have a national practice representing ESOPs from Rutland, VT to Newport Beach, CA.
Risk management is one of the most important services we provide. The attorneys in the Barclay Damon employee benefits practice help plan sponsors and fiduciaries identify, prioritize, and minimize the litigation and liability risks associated with the management and administration of employee benefit programs. We accomplish this through case-informed plan drafting and employee communications strategies, plan governance ideas, and “best practice” policies and procedures. For example, the Barclay Damon team has developed distinct risk management strategies, informed by case law, for employers with self-funded medical plans. We have developed similar strategies for sponsors of qualified and non-qualified retirement plans, severance plans, and other ERISA-covered arrangements.
Employee Benefit Plan Documentation
Plan documents, summary plan descriptions, and related documents are the focal point of just about every employee benefit plan dispute. A carefully crafted plan document and summary plan description can reduce litigation and liability risks. For example, we regularly provide plan and SPD drafting services in support of employers and other plan sponsors who wish to organize and restructure their complex health and welfare benefit programs into single, comprehensive ERISA health and welfare benefits plans.
Plan Governance – Reducing Board Member and Executive Officer Litigation and Liability Risks
Members of a plan sponsor’s governing body and its executive employees are, more often than not, ERISA fiduciaries because of the nature of their functions or the duties assigned to them under the terms of the employer’s ERISA documents. As such, a plan sponsor’s board members and executives are personally exposed to employee benefit plan litigation and liability risks. Our attorneys helps senior executives and board members understand their fiduciary responsibilities, and take steps to minimize those responsibilities and the attendant litigation and liability risks.
Health and Welfare Benefit Plans
Barclay Damon’s employee benefits practice has broad experience addressing the legal considerations that are unique to health and welfare benefit plans. The attorneys in this group advise clients on a variety of health law matters, counseling plan sponsors, insurers and health plan service providers on a broad array of issues relating to ERISA, COBRA, the Affordable Care Act (“ACA”) and HIPAA privacy and security. The attorneys in our employee benefits practice have substantial experience negotiating administrative service agreements, business associate agreements, and nondisclosure and data transmission agreements related to the operation and administration of self-funded medical plans. Members of our group have also advised health insurance companies and brokers develop, document, and administer insurance products and services in a manner that comports with applicable law, most notably, the Affordable Care Act.
ERISA Claims and Dispute Resolution
ERISA governed employee benefit plans must have a claims and appeal procedure that affords aggrieved plan participants a full and fair opportunity to be heard. Our attorneys routinely help claims administrators and administrative committees carry out their responsibilities in accordance with the claim and appeal rules prescribed by federal law. Careful adherence to a plan’s internal claims procedure reduces litigation risk and ensures, to the maximum extent possible, that a plan or claims administrator’s decision regarding a benefit entitlement will be upheld if the dispute should find its way to court.
ERISA Litigation Support
When a dispute ends up in court, Barclay Damon benefits attorneys provide valuable subject matter support to Barclay Damon litigators in the defense of ERISA benefits and fiduciary breach claims brought against plan sponsors, service providers, employee benefit plans, and plan fiduciaries.
Governmental Investigations and Audits
We are regularly engaged by plan sponsors and fiduciaries in connection with United States Department of Labor investigations and enforcement matters and have success negotiating voluntary correction steps that avoid litigation and penalty assessments. Our attorneys also have substantial experience guiding employers through IRS audits of tax qualified plans.
Compliance Standards Governing Retirement Plan Recordkeeping and Investment Programs
Our attorneys provide pragmatic legal advice regarding qualified plan design, 401(k) recordkeeping and administration, and investment program management. A recent litigation trend involves law suits brought against employers alleging that, as sponsors of 401(k) plans, the targeted employers authorized the payment of excessive fees for the administrative and investment services provided to the plans. Barclay Damon benefits attorneys have developed “best practice” policies and procedures designed to minimize litigation risk, strategies that involve the negotiation and monitoring of service provider and investment management fees.
Privacy and Security of Personal Health Information
Barclay Damon counsels group health plans, in particular self-funded plans, on compliance with the privacy, security, and breach notification requirements of state and federal privacy and security laws. Our group assists clients with HIPAA risk assessments, business associate contract review and negotiation; development of HIPAA privacy and security policies and procedures; group health plan workforce training; breach assessment and notification; corrective actions; OCR and attorney general investigation response; and general advice regarding the use, disclosure, exchange, retention, and destruction of health information.
Affordable Care Act Compliance
Barclay Damon has extensive experience addressing employer and provider concerns in connection with the broad provisions of the Affordable Care Act. We help employers meet the challenges of complying with new benefit mandates, coverage requirements, government and participant reporting and disclosure requirements, and taxes. Keeping up with the continuous flow of health care guidance and case law is a major challenge for health plan sponsors. Our attorneys have experience helping our clients react quickly and intelligently to new developments. The attorneys at Barclay Damon have a demonstrable commitment to the subject matter and have been helping clients comply with existing law and new developments since the March 2010 enactment of the ACA.