The Internal Revenue Service (IRS) recently announced the cost-of-living adjustments to the applicable dollar limits for various employer-sponsored retirement and welfare plans for 2018. Although some of the dollar limits currently in effect for 2017 will remain the same, the majority of the limits will experience minor increases for 2018.

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To recruit and retain top talent, employers often offer benefits more generous than required under the law. Such benefits include unlimited vacation, paid maternity leave and paid paternity leave. However, a recent US Equal Employment Opportunity Commission (EEOC) lawsuit filed against Estee Lauder Companies, Inc. (Estee Lauder) reveals how even the most well-intentioned of programs can result in a discrimination lawsuit.

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The Enhanced Nurse Licensure Compact (Compact) has now been adopted by 26 states, which means the Compact will be taking effect on January 19, 2018. Nurses who seek to practice telemedicine and deliver in-person care across state lines and who meet the Compact’s licensure requirements in these states will have one less obstacle to overcome going forward.

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On October 12, 2017, McDermott Will & Emery filed a lawsuit on behalf of The ERISA Industry Committee (ERIC) challenging new reporting requirements under Oregon law as applicable to retirement plans subject to ERISA. Below is a press release from ERIC and Q&As regarding this litigation.

OregonSaves is the state of Oregon’s state-run retirement program that automatically enrolls employees of employers into individual retirement arrangements (IRAs). Unless an employee opts out of OregonSaves, a portion of each paycheck is added to an IRA account in the employee’s name. Oregon is the first state to establish an auto-enrollment IRA program.

An employer that offers a qualified plan is not required to participate in OregonSaves, but only if it has a valid and current certificate of exemption. Obtaining this exemption depends upon reporting to the state of Oregon regarding an employer’s qualified plan. For employers with 100 or more employees in Oregon, this filing is due by November 15, 2017. The ERIC lawsuit alleges that ERISA’s express preemption provision preempts this reporting requirement.

This is the latest action by a state to impose reporting requirements on ERISA covered plans. Previously the state of Vermont (and other states) sought to require ERISA medical benefit plans to report their claims experience for purposes of compiling a so-called All Payor Claims Database (APCD). In the 2016 case of Gobeille v. Liberty Mutual Insurance Company, the US Supreme Court held that ERISA preempted Vermont’s APCD reporting requirement.

ERIC supports state auto-enrollment programs intended to increase access to retirement savings plans if such programs do not infringe on employers that already provide ERISA-governed retirement plans. Tracking and complying with additional reporting burdens imposed by state-run retirement plans on a state by state basis would be unduly burdensome for employers.

View the full ERIC Q&A here.

There has been some prominent coverage on this case, including Industry group sues over Oregon retirement plan, Employers sue to block OregonSaves requirementsERIC files lawsuit against Oregon Retirement Savings BoardERISA Industry Committee sues to stop OregonSaves reporting demands and Oregon’s retirement-savings plan faces legal challenge. The team will continue to monitor and provide regular updates.

Mary Samsa and Allison Wilkerson discussed that the majority of ERISA disclosures are in fact employee communications – many of which are viewed as “routine” by employers.  As such, plan sponsors are continually balancing the best way in which to relay complex benefit plan information in a manner to best be understood by employees but equally satisfy the applicable regimented disclosure requirements. Some key takeaways from their presentation included not only the compliance and content requirements, but methods for delivering communications to employees, traps for the unwary (i.e., inconsistent information communicated, the advantage of having these communications reviewed by legal counsel, and oversight of third parties who assist in preparing communications) and some common sense approaches for routine reviews of communications and continuing education to participants so that periodic communications are not always monumental tasks.

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Since the announcement by the Internal Revenue Service (IRS) that sponsors of individually designed retirement plans may no longer receive a periodic determination letter, plan sponsors have faced uncertainty about how to demonstrate compliance for their retirement plans. Our McDermott Retirement Plan Compliance Program, a new opinion letter and operational review program for individually designed 401(a) and 403(b) retirement plans, will allow plan sponsors to document their plans’ compliance with tax code requirements in response to the curtailment of the IRS’ determination letter program.

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According to U.S. News & World Report, estimates for the cost of Hurricane Harvey’s damage have come in as high as $190 billion, and damage estimates for Hurricane Irma are still rolling in but range up to $100 billion. To assist taxpayers affected by these devastating storms, the Internal Revenue Service, Department of Labor, and Pension Benefit Guaranty Corporation have granted multiple forms of relief to taxpayers impacted by Hurricane Harvey, Hurricane Irma, and other disasters enumerated by the Federal Emergency Management Agency.

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The Internal Revenue Service (IRS) recently extended the temporary nondiscrimination relief for closed defined benefit plans. This extended relief is intended to enable closed pension plans (defined as pension plans that have been closed to new participants but continue to provide ongoing benefit accruals for certain participants) to more easily satisfy certain nondiscrimination testing requirements.  In most cases where the relief applies, the closed defined benefit plan is aggregated with a defined contribution plan to satisfy the nondiscrimination testing requirements, and the relief assists the aggregated plan in passing nondiscrimination requirements that apply to accrued benefits and to certain rights and features relating to those benefits.

The original nondiscrimination testing relief for closed pension plans was provided several years ago in an earlier IRS Notice. This relief was already extended on two prior occasions, and the recent IRS Notice further extends the relief until the end of plan years that begin before 2019, as long as the conditions of the original IRS Notice continue to be satisfied.  In 2018, the IRS also intends to issue final regulations under Section 401(a)(4) of the tax code that address the nondiscrimination requirements for closed pension plans.  Until then, the IRS indicated that plan sponsors can still rely on the proposed 2016 IRS regulations under Section 401(a)(4) for plan years that begin before 2019.

 

 

 

Anxious about open enrollment? Join McDermott lawyers Judith Wethall and Finn Pressly for a rundown of the top 10 issues to watch as you prepare for the 2018 plan year, including mandatory notices, electronic disclosure, and trends in ERISA litigation.

Register Here

Date
Friday October 6, 2017

Time
10:00 am – 10:40 am PDT
11:00 am – 11:40 am MDT
12:00 pm – 12:40 pm CDT
1:00 pm – 1:40 pm EDT

Mark your calendars for the first Friday of the month! McDermott’s Employee Benefits Group will be delivering timely topics in our “Fridays With Benefits” monthly webinar series.