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In many employment and severance agreements for executives, the company agrees to provide to the executive, or former executive, tax-free health benefits under the company’s group health plan that are richer than the health plan benefits offered to other active or former employees. Typically, in these instances, the company will pay all or a larger portion of the health care premiums associated with the continued coverage than the company otherwise does for other active or former employees.

Another form of executive health benefits may include the company agreeing to continue health plan benefits for a period of time longer than what the company is otherwise required to do under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA). In these instances, for example, the company may offer tax-free continuation coverage until the executive is eligible for Medicare coverage.

Since the 1980s, employers have used fully insured plans as a vehicle to provide executives and key employees with more generous health benefits. Historically, there were no penalties or tax issues associated with providing a higher level of health benefits to executives if the health benefits were fully-insured through an insurance company. However, with the implementation of PPACA that will no longer be the case. The Act’s nondiscrimination rules will take effect once the Internal Revenue Service (“IRS”) issues further guidance.

Notably, under the Act, “highly compensated” is not defined by the amount of income an executive earns. Instead, a highly compensated individual is generally defined as one of the five highest paid officers or among the highest paid 25% of all company employees.

Under the Act’s nondiscrimination rules, an employer’s health insurance plan must satisfy two separate tests: eligibility and benefits. The eligibility test may be satisfied if: (i) 70% or more of all company employees are covered by the plan; or (ii) 70% of all company employees are at least eligible to participate in the plan and 80% of those eligible employees are covered.

Alternatively, an employer may satisfy the eligibility rules by classifying employees on a nondiscriminatory basis; however, such classifications may have less predictability because they will likely be scrutinized by the IRS on a facts and circumstances basis. It should be noted that certain company employees may be excluded from eligibility testing altogether, including employees with less than three years of service, employees under age twenty-five, and part-time employees.

To satisfy the benefits test, all benefits provided to highly compensated individuals, including their dependents that participate in the company’s plan, must be provided to all other company employees that participate in the plan.

Employers that fail to satisfy these requirements may face an excise tax equal to $100.00 per day during the period of noncompliance for each “affected employee.” For this purpose, the IRS has defined affected employees to include each employee who is discriminated against as a result of the arrangement. If the violation is the result of an unintentional failure the maximum penalty is the lesser of (i) 10% of the total amount paid by the company in the previous year with respect to health insurance, or (ii) $500,000. The penalty is enforced on a voluntary self-reporting basis whereby the IRS requires violating employers to file a special tax return. More draconian penalties apply if the IRS discovers the violation in connection with an audit.

These rules will likely catch executives, and their institutions, by surprise since this portion of health care reform has, to date, received little attention. Depending on exactly how the IRS interprets and implements these new rules, they could have a broad impact across a wide range of employment and severance agreements. In this regard, it is important to note that the new law does not contain an exception for existing arrangements.

Based on recent comments from the IRS that these new rules will be “a very challenging provision to apply,” executives and companies should start to take steps to survey and outline their current health care arrangements. Once further IRS guidance is issued, existing and new health care arrangements will need to be reviewed to ensure that the company may continue to administer the arrangement without incurring significant penalties. If prohibited, these arrangements will need to be restructured in a compliant manner.

We will continue to keep you apprised of new developments. In the meanwhile, please feel free to contact us.

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On June 26, 2002 Internal Revenue Service Notice 2002-45 was issued describing the tax benefits of a health reimbursement arrangement C’HRA”). Under the IRS definition, an HRA is paid for by an employer; reimburses an employee only for medical care expenses for the employee and his or her family and provides reimbursement up to a specified dollar amount for a coverage period with any unused portion of the dollar amount at the end of the coverage period being carried forward to increase the reimbursement amount in subsequent coverage periods. The reimbursement of medical care expenses is excludable from the gross income of the employee. However, an HRA will not qualify for income tax inclusion if any person has the right to receive cash or any other taxable or non-taxable benefit other than reimbursement of medical care
expense. The HRA benefit may not be tied, in any way, to any other benefit for which an employee may be eligible.

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Construction Industry Bargaining

Health Care Reform

Judicial Developments in Labor and Employment Law

Final Interim Regulations Under the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act Of 2008

New Burdens Imposed on Unions in Arbitration

Prevailing Wage Issues, Project Labor Agreements and Revised D.O.T. Drug Testing Regulations

The Basics of and Recent Developments in Private Sector Bargaining Law

Public Sector Issues and Update

Update on Cobra Economic Subsidy Extension

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Investment Advice to Participants and Beneficiaries

Judicial Developments In Employee Benefits Law

Multiemployer Pension Plan Information

Service Provider Fee Disclosures

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Custodians (and directed trustees) often maintain general accounts to facilitate the transactions of employee benefit plans. Typically, such accounts hold either contributions and assets pending investment directions or funds in connection with the issuance of a check to make a plan distribution or other disbursement. In regard to these accounts, the custodians often retain earnings, called “float”, from the short-term investment of funds held in these accounts. The Department of Labor, in Advisory Opinion 93-24A, stated that a custodian or trustee’s exercise of discretion to earn income for its own account from the float attributable to outstanding benefit checks constitutes prohibited fiduciary self-dealing. In a subsequent information letter, however, the DOL indicated that if a bank fiduciary openly negotiates with an independent plan fiduciary to retain float then the use of float would not be self-dealing. To avoid problems, banks were encouraged, as part of their fee negotiations, to provide full and fair disclosure regarding the use
of float on outstanding benefit checks.

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In these situations, employers, who want to ensure the executive’s continuing loyalty and commitment and believe that it is in their company’s and shareholder’s best interests, will provide the executive additional incentive to continue his or her employment. Such Agreements ensure that the executive will continue to maximize the value of the company instead of focusing on the potential loss of their position. The motivation usually takes the form of bonus compensation, severance, or both, as well as the provision of other benefits that the employer deems necessary to retain the executive.

In addition, executives should seek the protection of a change in control provision. Although such provisions generally appear in employment and severance agreements, we have successfully negotiated these provisions either as a stand-alone agreement or as part of an Executive Retention Agreement. The benefit of a change in control provision is peace of mind—the executive knows he or she will receive compensation and benefits if the executive loses their position under certain circumstances following, for example, a merger of the company.

Such provisions are sometimes called “golden parachutes” because they provide protection for executives that exit the company. There are single trigger and double trigger change in control provisions. Single trigger provisions simply require the occurrence of change in control event, such as a merger, for the executive to obtain a vested right to the compensation. A double trigger change in control provision requires the occurrence of a control event, such as a merger, plus the executive’s subsequent separation from service. Following the executive’s separation— either for involuntary termination or voluntary resignation with good reason—compensation would be paid to the executive.

We understand the ins and outs, and points of negotiation, of several different types of individual executive agreements including change in control agreements, employment agreements, severance agreements, deferred compensation agreements and retention agreements.

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