Employee Benefits and Executive Compensation

Hirschler Fleischer’s Employee Benefits and Executive Compensation Practice Group assists clients with all aspects of implementing and maintaining tax qualified retirement plans, executive compensation programs, equity compensation plans, and welfare benefit plans. We have extensive experience working with both large and small employers, non-profit entities, governmental employers, and educational institutions.

Working closely with the Corporate and Business Planning, Investment Management, and Securities and Finance Practice Groups, our attorneys leverage their knowledge and experience to deliver creative and effective strategies when working on all aspects of matters involving employee benefit plans and executive compensation. For example, we partner to assist venture capitalists and other sophisticate investors navigate the “plan asset” rules that impact investments made by employee benefit plans and IRAs, we conduct due diligence and address the employee benefit aspects of mergers, acquisitions, and spin-offs,  we design compensation programs that help start-up and growing companies attract and retain key personnel, we assist with the selection and monitoring of investment managers for retirement plan assets and related fiduciary duties, and we advise companies, lenders, fiduciaries, and management groups on all aspects of sophisticated transactions involving Employee Stock Ownership Plans (ESOPs).

We are also experienced in ERISA litigation, representing employee benefit plans, their fiduciaries, and plan participants in benefit claims, breach of fiduciary duty claims, and plan administration claims.

Qualified Retirement Plans

We advise clients on the complex requirements under ERISA and the Internal Revenue Code that govern qualified retirement plans, including defined benefit pension plans, cash balance plans, 401(k), profit sharing and other defined contribution plans, and 403(b) and 457plans for tax-exempt entities.

Our extensive ESOP experience includes the creation and maintenance of Employee Stock Ownership Plans (ESOPs). Leveraging the knowledge and experience of the firm’s corporate and finance practice groups, we reach beyond conventional concepts to deliver creative and effective solutions. Among our recent ESOP-related engagements: sale-side representation of privately-held business owners; estate and corporate management succession planning;  and counseling of fiduciaries, lenders and management groups involved in sophisticated ESOP transactions. Beyond structuring and implementing innovative transactions, we provide ongoing counsel to ESOP companies.

Our qualified retirement plan services include:

  • Plan design, implementation, and administration
  • Plan mergers, spin-offs, and terminations
  • Obtaining plan qualification determination letters and rulings from the IRS, Department of Labor, and PBGC
  • Advice on fiduciary duties and compliance with prohibited transaction requirements
  • Assist with the negotiation of investment management and plan service provider agreements
  • Assistance with participant disclosure requirements and other employee communications
  • Correction of operational and compliance errors through EPCRS and other IRS and Department of Labor correction programs
  • Representation in audits and other IRS and Department of Labor investigations

Health and Welfare Benefits

Our welfare benefits practice includes ERISA compliance and administration support for the full range of benefits offered by employers, including medical, dental, vision, disability, life insurance, wrap plans, cafeteria plans, flexible spending accounts, medical reimbursement plans, and severance plans. Our services include:

  • Plan design and implementation
  • Assistance with Summary Plan Descriptions and other employee communications
  • COBRA compliance
  • HIPAA compliance
  • Contract negotiations and monitoring of services provided by third party service providers and insurance carriers
  • Assistance with Form 5500 annual reports
  • Representation in audits and other IRS and Department of Labor investigations

Executive Compensation

Our attorneys advise management and boards of directions about the tax, securities law, corporate governance, and other legal aspects of compensation programs designed to attract and retain key employees. We have extensive experience with all types of non-qualified deferred compensation arrangements, including elective deferral agreements, supplemental executive retirement plans (SERPs), and the use of rabbi trusts, insurance, and other funding strategies. We have extensive experience with all types of equity compensation and performance-based compensation arrangements, including  stock options, restricted stock and restricted stock units, stock appreciation rights, phantom stock, and limited liability company profits interests.

In addition, we assist clients with executive employment agreements, change in control agreements, severance agreements, and consulting agreements. Our services include:

  • Design and implementation of plans and agreements
  • Advice on the application of Internal Revenue Code section 409A
  • Assistance with compensation disclosures in proxy statements and other SEC filings
  • Advice on income tax and FICA tax consequences of executive and equity-based compensation arrangements

Employee Benefits Litigation

Members of the team are also experienced in employee benefits litigation, representing both employees and employee benefit plans and their fiduciaries in ERISA litigation arising out of benefits claims and plan administration.