Book

ABOUT THE BOOK – INTRODUCTION

This book is for the proactive business owner, the CEO who knows her highest and best use of time and talent is acting as her team’s quarterback and not getting stuck “in the weeds.” This book is for the CFO who knows, perhaps firsthand, the weighty difference between an ounce of prevention and pounds upon pounds of cure. This book is for the HR Director whose harried day doesn’t allow for additional concerns related to retirement plan design or governance. This book is directed toward the CPAs, the business attorneys, the third-party administrators, and the benefits brokers who recognize the value of forming a team with other specialists to achieve the greatest good for a client.

ERISA.

The acronym itself suggests simplicity, but businesses of all sizes struggle with legal compliance when it comes to the Employee Retirement Income Securities Act of 1974, as amended (“ERISA”). Over the past year, the team at Hall Benefits Law collectively cringed as multiple plan sponsors (employers) asked us whether ERISA legal compliance was actually important, citing the current Administration’s seemingly more lax approach to benefits legal compliance. Specifically, they point out that in January of 2017, President Trump issued an Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal, an order that permits federal agencies to exercise authority to reduce the potential burdens of the Patient Protection and Affordable Care Act of 2010 (“ACA”). However, statistics from the Department of Labor (DOL) show that ERISA enforcement activity has increased in recent years and under the Trump administration!

Department of Labor Audits

DOL conducts thousands of audits of employee benefit retirement plans, focusing on violations of ERISA.

In past years, the DOL collected “recoveries” for benefit plans totaling:

    • 2018: $1.6 billion (45 percent increase over 2017)
    • 2017: $1.1 billion million (41 percent increase over 2016)
    • 2016: $777.5 million

In 2018, DOL closed 1,329 civil investigations with 860 (64.7%) of those cases resulting in monetary penalties or other corrective action for plans.

  • For 2018, DOL civil investigations led to:
  • 268 criminal investigations
  • Indictment of 142 persons — including plan officials, corporate officers, and services providers – for crimes related to employee benefit plans
  • For 2018, DOL’s benefits auditors closed more than 170,000 inquiries and recovered $443.2 million in benefits on behalf of workers and their families through informal resolution of individual complaints. “These inquiries are a major source of enforcement leads.”

These statistics are evidence that proactive ERISA legal compliance is more important than ever.

Complex Legal Compliance Issues Require Creative Solutions

When faced with a client’s problem, the attorneys at Hall Benefits Law see before them an opportunity. While the law may be written in stone, there is no law against approaching every client matter with new eyes and seeking creative legal solutions to lift the plan sponsor client above the seemingly unending morass of code into a new plane of compliance and profitability. In the pages that follow, ERISA Attorney Anne Tyler Hall presents seven employee benefits matters she and her team encountered. The examples that follow demonstrate novel approaches and solutions to complex ERISA legal compliance issues related to executive compensation, health and welfare benefits, retirement plans, Employee Stock Ownership Plans (ESOPs), mergers and acquisitions, and health care reform. We hope that you, like the clients who encountered these issues, will find these solutions enlightening and move toward proactivity in the way you approach employee benefits legal compliance for your business. Can you afford not to?

— David Hall, Firm Manager


1 Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal, January 24, 2017 (Available at: https://www.federalregister.gov/documents/2017/01/24/2017-01799/minimizing-the-economic-burden-of-the-patient-protection-and-affordable-care-act-pending-repeal).

2 Fact Sheet, EBSA Restores $1.6 Billion to Employee Benefit Plans, Participants and Beneficiaries (available at: https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/fact-sheets/ebsa-monetary-results.pdf).


 

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