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Employee Benefits Blog

Insights on Employee Benefits and Executive Compensation

UK Based Employees Who Refuse to Work Their Notice Period

Posted in Employment

If an employee walks out, refusing to work his notice period, can an employer elect to keep the contract of employment alive, without paying the recalcitrant employee?

In the case of Sunrise Brokers LLP v Rodgers [2014] EWHC 2633 (QB), the High Court held that the answer to this question is yes.

Read the full article.

PBGC Coverage May No Longer Apply to Puerto Rico-Only Qualified Retirement Plans

Posted in Retirement Plans

Employers that sponsor defined benefit qualified retirement plans benefiting only Puerto Rico employees should be aware that Pension Benefit Guaranty Corporation (PBGC) coverage may no longer apply. Last year, the PBGC withdrew old prior opinion letters (Opinion Letters 77-172 and 85-19) regarding PBGC coverage in Puerto Rico and Guam. Those opinion letters articulated the PBGC’s position at that time, that Title IV of the Employee Retirement Income Security Act (ERISA) (providing for PBGC coverage), may apply to defined benefit plans covering only Puerto Rico participants if the Puerto Rico plan is either qualified under Section 401(a) of the U.S. Internal Revenue Code or has been operated in practice in accordance with the requirements of Section 401(a) for at least the five preceding years. Earlier this year, in remarks made at an enrolled actuaries meeting, PBGC officials stated that, going forward, PBGC will determine that a plan is not covered under Title IV of ERISA if (1) the plan’s trust is created or organized outside of the United States (e.g., Puerto Rico) and (2) no election under ERISA section 1022(i)(2) has been made. As a result, it appears the new PBGC position is that Puerto Rico-only qualified plans generally are not covered under Title IV of ERISA (although dual-qualified plans with Puerto Rico participants are covered). Since few Puerto Rico plans have made an election under ERISA section 1022(i)(2) due to the strict U.S. laws applicable to such arrangements, this new PBGC position will affect a number of Puerto Rico-only defined benefit plans. PBGC officials also stated that if the PBGC determines that a plan is not covered under Title IV of ERISA, it may refund up to six years of premiums.

Employers with Puerto Rico-only defined benefit plans should consider whether PBGC coverage of their plan is still possible or desired. If not, a refund of PBGC premiums should be sought.

UK Pensions Auto-Enrolment Scheme

Posted in Employment, Retirement Plans

A radical change to UK pension law is expected to affect tens of thousands of organisations with UK-based employees in 2014.  This follows the imposition of an unprecedented obligation on employers to “automatically enrol” eligible employees in, and to contribute financially to, a pension scheme that meets specific, carefully defined criteria.

Read the full article.

Individual Responsibility under the ACA

Posted in Health and Welfare Plans

Effective 2014, if a taxpayer is not covered under minimum essential coverage for one or more months, then, unless an exemption applies, the taxpayer is liable for the individual shared responsibility payment on his return.  The individual shared responsibility payment is the lesser of: (1) the sum of the monthly penalty amounts; or (2) the sum of the “monthly national average bronze plan premiums” for the “shared responsibility family.”

In recently published Revenue Procedure 2014-46, Sec. 3, the IRS provides that the monthly national average premium, for qualified health plans that have a bronze level of coverage and are offered through exchanges in 2014, is $204 per individual and $1,020 for a shared responsibility family with five or more members. For example, if the sum of the monthly penalty amount is $95 (or 1 percent of income) and the bronze level of coverage costs $204, the individual’s shared responsibility payment would be $95, unless the 1 percent is greater than $95.

More States Restrict Employers’ Access to Employees’ Social Media Accounts

Posted in Employment, Privacy and Data Security

As first discussed in McDermott Will & Emery’s Privacy and Data Protection 2013 Year In Review, state legislatures are enacting laws limiting employers’ ability to access the social media accounts of their employees.

Thus far in 2014, four more states – LouisianaOklahomaTennessee and Wisconsin – have enacted social media legislation, bringing the total number of states with such legislation to 16.

How State Social Media Laws Effect Employers

Generally, state social media laws bar employers from requiring or requesting that an employee or applicant provide log-in credentials for his/her personal social media account.  Some of these state social media laws also prohibit an employer from requiring an employee to add another employee or supervisor to a social media account “friends” or contacts list or to access personal social media accounts in the employer’s presence.  Many of the state social media laws also prohibit employers from basing adverse employment action on an employee’s refusal to comply with an employer’s request for social media account access.

While these laws offer employees added protection with respect to their personal social media accounts, most of the laws feature important carve-outs.  Among other exceptions, most state social media laws allow employers to: access publicly-available social media about employees, restrict employees’ access to social media during work hours and conduct certain types of employment-related investigations that may involve an employee’s social media account(s).

Notably, all four of the recently-enacted laws allow employers to monitor the social media activity of employees when employees access their social media accounts through employer-provided IT systems.

Compliance Tips

Since the terms of state social media laws vary, employers should consider establishing and following basic guidelines to ensure compliance with the myriad laws.  Key steps are:

  • Updating employer policies to clarify state-specific restrictions related to employee access to personal social media accounts through employer-provided information systems; and
  • Providing training to managers, Human Resources and IT professionals about the conduct prohibited by the different state social media laws.

Camp Tax Reform Proposal Targets Executive Compensation

Posted in Executive Compensation

On February 26, 2014, U.S. House of Representatives Committee on Ways and Means Chairman Dave Camp (R-Mich.) released the proposed Tax Reform Act of 2014 (the Camp Proposal).  In addition to simplifying the Internal Revenue Code (IRC) and reducing corporate and individual tax rates, the Camp Proposal would fundamentally change the income tax rules that apply to nonqualified deferred compensation arrangements and would further restrict tax deductions available to publicly held corporation when paying named executive officers.  It would also impose a new excise tax on employees of certain tax-exempt organizations who receive excessive compensation and certain payments that are contingent upon a change in control.  Although unlikely to be enacted this year, the Camp Proposal provides a blueprint for other legislators to propose tax law changes that would significantly impact current executive compensation practices.  Given the current political environment and the way tax revenue is estimated by Congress when preparing budgets, it is likely that we have not seen the last of the executive compensation changes included in the Camp Proposal, which makes it important to understand how they work and what they would mean for current executive compensation programs.

Read the full article.

U.S. Appeals Courts Issue Conflicting Decisions on Whether ACA Permits Tax Subsidies of Health Care Coverage Purchased Through Federal Exchanges

Posted in Health and Welfare Plans

The U.S. Court of Appeals for the District of Columbia struck down the Internal Revenue Service (IRS) rule providing for federal tax credits for health insurance purchased through federal exchanges, while the U.S. Court of Appeals for the Fourth Circuit upheld the same IRS rule. If en banc review in the appeals courts does not resolve the circuit split, the matter likely will go to the Supreme Court of the United States for review. Tax subsidies under the IRS rule should remain available until such review, which is not expected before June 2015.

Read the full article.

Supreme Court Prohibits Warrantless Mobile Phone Searches, Underscores Individual Right to Privacy

Posted in Employment, Privacy and Data Security

The Supreme Court of the United States’ recent decision prohibiting warrantless mobile phone searches incident to arrest underscores unique privacy concerns raised by modern technology. The decision has an immediate impact on an individual’s rights under the Fourth Amendment, and may also have an impact on evolving areas of white collar and employment law.

Read the full article.

IRS Ruling Allows Tax-Deferred Stock Rights for Fund Managers

Posted in Retirement Plans

Revenue Ruling 2014-18 holds that stock options and stock-settled stock appreciation rights (stock rights) granted by offshore funds and other entities domiciled in tax-indifferent jurisdictions can be structured to avoid immediate taxation under Section 457A of the U.S. tax code. Among other things, this ruling allows an offshore fund to compensate its managers with stock rights that will only be subject to U.S. tax upon exercise, so long as the stock right is exempt from Section 409A and the manager has the same redemption rights with respect to acquired shares as other shareholders of the hedge fund.

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