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Employee Benefits Law: ERISA and Beyond

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Jeffrey D. Mamorsky


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ERISA—the Employee Retirement Income Security Act—requires that employee benefit plans meet the demands of no fewer than three federal agencies: the Internal Revenue Service (IRS); the Department of Labor (DOL); and the Pension Benefit Guaranty Corporation (PBGC). In addition, ERISA is affected by major legislation, including: the Tax Reform Act of 1986; the Americans with Disabilities Act of 1990; the Family and Medical Leave Act of 1993; and the Pension Protection Act of 2006, which was the most significant overhaul of ERISA since the Tax Reform Act of 1986. Employee Benefits Law: ERISA and Beyond takes you step by step through these and other statutes and regulations to help ensure that your plans are properly structured, qualified and implemented.

Cited by the U.S. Supreme Court, this definitive two-volume guide for attorneys, accountants, actuaries, consultants, and other professional advisors covers such subjects as: goals of the various types of plans; tax and nontax benefits for both employers and employees; investment diversification requirements; transfers of qualified employer securities; qualification requirements; cafeteria plan regulations; fiduciary responsibilities; filing and disclosure obligations; and much more.

Employee Benefits Law: ERISA and Beyond also features IRS and PBGC forms and includes thorough coverage of recent landmark Supreme Court decisions, the Katrina Emergency Tax Relief Act of 2005, the Pension Funding Equity Act of 2004, the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), the IRS's Voluntary Compliance Resolution (VCR) Program, the Small Business Job Protection Act of 1996, and other developments.

Book #00557; looseleaf, two volumes, 2,824 pages; published in 1980, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-007-4


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 2824
  • ISBN: 978-1-58852-007-4
  • Pub#/SKU#: 557
  • Volume(s): 2

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  • Jeffrey D. Mamorsky

Jeffrey D. Mamorsky is a partner in the New York office of the international law firm of Greenberg Traurig, LLP. He is the editor of the Employee Benefits Handbook, as well as the founder and editor-in-chief of the Journal of Compensation and Benefits. He is the author of Employee Benefits Law: ERISA and Beyond and Health Care Benefits Law, both published by Law Journal Press.

Mr. Mamorsky graduated from New York University College of Arts & Sciences and holds a J.D. from New York Law School and an LL.M. in taxation from New York University Law School.


Also by Jeffrey D. Mamorsky:
Health Care Benefits Law

Volume 1
Introduction


CHAPTER 1
What Is a Pension Plan?

§ 1.01 Pension Plan Defined
§ 1.02 The Basic Ingredients of a Pension Plan
[1] Plan Established by Employer
[2] Definitely Determinable Benefits
[3] Incidental Benefits
[4] Systematic Payment of Benefits
[5] What Is a “Qualified Joint and Survivor Annuity”?
[6] What Is a “Qualified Preretirement Survivor Annuity”?
[7] When Must Payment Begin?
[8] Payment of Benefits on Termination of Employment
[9] Withdrawals During Employment
[10] IRS Sample Plan Provisions
§ 1.03 Kinds of Pension Plans
[1] Fixed-Benefit Plans
[2] Unit-Benefit Plans
[3] Variable or Equity Annuities
[4] Cash Balance Plans
[5] Eligible Combined Defined Benefit Plans and Qualified Cash or Deferred Arrangements
§ 1.04 Optional Benefits Prior to Normal Retirement Age
[1] Early Retirement
[2] Disability Retirement
[3] Death Benefits
[4] Health and Accident Benefits
[5] Incidental-Payment Test for Beneficiaries
§ 1.05 Ceiling on Benefits
[1] Limitation for Defined-Benefit Plans
[2] Excise Tax on Excess Distributions
[3] Application of Limitations to Combinations of Plans
[4] Special Rule for Combinations of Plans in Effect on September 2, 1974
[5] Aggregation of Plans for Purposes of Limitations
[6] Employer 50% Common Control Test

CHAPTER 2
What Is a Profit-Sharing Plan?

§ 2.01 Profit-Sharing Plan Defined
§ 2.02 Qualified Profit-Sharing Plans
[1] Plan Established by Employer
[2] Availability of Profits
[3] Employer Contribution Formula
[4] Allocation of Funds
[5] Distribution of Funds
[6] Hardship Distributions
[7] Distribution at the Option of the Trustee or Pension Committee
[8] Loans
[9] Methods of Distribution
[10] Contributions to the Plan
[11] Allocation Formulas
[12] Investment Diversification
[13] IRS Sample Plan Provisions
§ 2.03 Thrift or Savings and Investment Plans
§ 2.04 Stock Bonus Plans
[1] Employee Stock Ownership Plans
[2] The Tax Credit ESOP
[3] The KSOP
[4] Employee Stock Purchase Plans
§ 2.05 Money Purchase Pension Plans
[1] Principles of Money Purchase Plans
[2] Transfers and Rollovers from Money Purchase Plans to Profit Sharing Plans
§ 2.06 Target-Benefit Plans
§ 2.07 Cash or Deferred Plans
[1] Cap on Elective Deferrals
[2] Current Nondiscrimination Tests
[3] Meeting the ADP/ACP Tests
[4] Penalty Taxes Relevant to Cash or Deferred Arrangements
[5] Uniform Definition of Highly Compensated Employee
[6] Wraparound Plans and Similar Arrangements
[7] Automatic Enrollment in Cash or Deferred Plans
[8] Retirement Savings Initiative
[9] Section 401(k) Fix-It Guide
§ 2.08 Nondiscrimination Requirements for Employer Matching Contributions and Employee Contributions
[1] The Nondiscrimination Test
[2] Alternative Method of Satisfying Special Nondiscrimination Test for Matching Contributions
[3] After-Tax Contributions
§ 2.09 Recovery of After-Tax Employee Contributions
§ 2.10 SIMPLE 401(k) Plans
§ 2.11 Valuation and Adjustment to Individual Accounts
§ 2.12 Limitations on Contributions to Defined-Contribution Plan
[1] In General
[2] Contribution Limits Increased by EGTRRA
[3] Deduction Limits Increased by EGTRRA
§ 2.13 2004 Final Section 401(k)/401(m) Regulations and Proposed 2009 Amendments
[1] Generally
[2] Effective Date
[3] Summary of Changes
[4] Suspension or Reduction of Safe Harbor Nonelective Contributions
§ 2.14  Roth 401(k) Contribution Program
§ 2.15 Section 403(b) Plans
[1] Written Plan Document Requirement
[2] Audits
[3] Field Assistance Bulletin 2009-02—Transitional Relief Regarding Reporting Requirements

CHAPTER 3
Pension or Profit-Sharing— What to Consider

§ 3.01 In General
§ 3.02 Common Considerations
[1] What Eligibility Requirements Will Be Set Up?
[2] What Vesting Will Be Provided?
[3] Employee Contributions
[4] Distribution Rules for Qualified Plans
[5] Limits on Benefits and Contributions
[6] Selection of the Funding Medium
[7] Uses of Life and Medical Insurance
[8] Plan Investments
[9] Should the Employer Set Up an Administrative Committee?
[10] Selection of Insurance Carriers for Annuity Purchases
§ 3.03 Pension Plan Considerations
[1] What Retirement Benefits Should the Plan Provide?
[2] Integration with Social Security
[3] Definition of Compensation
[4] Past-Service Credit
[5] Benefit Formulas
[6] Death Benefits and Their Estate Tax Consequences
[7] Disability Retirement
[8] Other Plan Benefits
[9] Methods of Paying Retirement Benefits
[10] When Should a Participant Retire?
[11] ERISA’s Minimum Funding Standards
[12] Methods of Accruing Benefits
[13] Plan Termination Insurance
§ 3.04 Profit-Sharing Plan Considerations
[1] What Profits Will Be Contributed?
[2] Treatment of Forfeitures
[3] How Will the Contributions Be Allocated?
[4] What Valuation and Accounting Procedures Can Be Used?
[5] Should the Plan Permit Loans or Withdrawals?
[6] How and When Should Benefits Be Paid?
[7] Should the Trust Invest in Employer Stock?

CHAPTER 3A
Tax Consequences

§ 3A.01 Tax Treatment of Employer Contributions
[1] Nonqualified Plans
[2] Qualified Plans
[3] Welfare Benefit Plan
[4] Golden Parachute Contracts
[5] Contribution Limits Increased by EGTRRA
[6] Qualified Plan Benefit Limits Increased by EGTRRA
[7] Catch-Up Contributions Enacted by EGTRRA
[8] Faster Vesting of Employer Matching Contributions
[9] Repeal of Multiple Use Test for 401(k) Plan
§ 3A.02 Impact of Taxation on Employees
[1] Qualified Plans
[2] Qualified Domestic Relations Order
[3] Group Term Life Insurance
[4] Cafeteria Plans
[5] Exclusions for Certain Employer Provided Fringe Benefits
[6] Transportation Fringe-Benefit Law Changes
[7] Golden Parachute Contracts
§ 3A.03 Estate and Gift Tax Consequences
[1] Gift Tax Consequences
[2] Estate Taxation of Distribution from Qualified Plans
[3] ERTA Changes in the Estate and Gift Tax Rules

CHAPTER 4
Participation

§ 4.01 The Test for Participation
§ 4.02 Minimum Participation Standards
[1] Maximum Age
[2] Year of Service
[3] Counting Hours
[4] Equivalency Method
[5] Elapsed-Time Method
[6] Decoupling
[7] Time of Participation
[8] Breaks in Service
[9] Service with Other Employers
[10] Leased Employees
§ 4.03 Minimum Coverage Requirements
[1] Prior Law, TRA ’86 and SBJBA ’96 Changes
[2] Ratio Percentage Test
[3] Average Benefits Test
[4] Components of the Coverage Test
[5] Former Employees
[6] Plans Maintained by More Than One Employer
[7] Testing Methods
[8] Family Member Aggregation Rule
[9] Acquisitions and Divestitures
[10] Eligibility to Contribute
[11] Sanctions
[12] Effective Dates
§ 4.03A Minimum Participation Requirements
[1] Applicable to Plans Separately
[2] Plans Excepted from Section 401(a)(26)
[3] Minimum Participation Requirements
[4] Testing Former Employees
[5] Testing Methods
[6] Retroactive Correction
[7] Plans Maintained by More Than One Employer
§ 4.03B Separate Line of Business Rules
§ 4.04 Contributory Plans
[1] Mandatory Contributions
[2] Voluntary Contributions
§ 4.05 Other Coverage Requirements
[1] Employees Working Beyond Retirement Age
[2] Plan Must Have Covered Employees
[3] Right to Deny Future Participation
[4] Continuation of Participation During Leave of Absence
[5] Period During Which the Plan Must Meet the Coverage Requirements
§ 4.06 Comparability
[1] Traditional Comparability Plans
[2] New Comparability Plans
§ 4.07 Applicability and Effective Dates

CHAPTER 5
Vesting

§ 5.01 In General
§ 5.02 Statutory Full Vesting
[1] Termination and Partial Termination of the Plan and Complete Discontinuance of Contributions
[2] Attainment of Normal Retirement Age
[3] Employer Contributions
§ 5.03 Minimum Vesting Standards
[1] Minimum Vesting Standards Prior to 1988
[2] Minimum Vesting Standards After 1988
[3] Top Heavy Plans
[4] Payroll-Based Employee Stock Ownership Plans
[5] Exceptions to Vesting Requirement: Early Termination of Plan
[6] Service for Vesting Purposes
[7] Breaks in Service
[8] Changes in Vesting Schedule
[9] Forfeitures of Vested Rights
[10] Allocation of Forfeitures
[11] When a Vested Benefit Is Payable
[12] Faster Vesting of Employer Matching Contributions

CHAPTER 6
Qualifying the Plan

§ 6.01 Purpose of Qualification
§ 6.02 The Determination Letter Process
[1] Requesting a Determination Letter
[2] Notice to Interested Parties
[3] Remedial Amendment Period
[4] Appeals Procedure
[5] Timing Amendments Pursuant to the Tax Reform Act of 1986 and Subsequent Legislation
[6] IRS User Fee Program
[7] Voluntary Compliance Resolution Programs
[8] Employee Plans Compliance Resolution System
[9] IRS Extends Employee Plans Correction Program to 403(b) Plans
[10] Changes to Employee Plans Compliance Resolution Program
[11] Requirements for Amending Defined Benefit Plans to Comply with GATT and SBJPA Under Revenue Ruling 98-1
[12] USERRA Qualification Requirements
[13] EGTRRA Amendments
§ 6.03 Requirements for Qualification
[1] Plan Instruments Must Be Written
[2] Plan Must Be Permanent and Continuing
[3] Plan Must Be Communicated
[4] Plan Must Prohibit Diversion or Reversion to Employer
[5] Plan Must Be for the Exclusive Benefit of Employees or Their Beneficiaries
[6] Prohibition Against Assignment and Alienation
[7] Definitely Determinable Benefits
[8] Feeder Plans
[9] Employers Covered Under a Single Plan
[10] Compensation
[11] Highly Compensated Employees
[12] Repeal of Special Definition of Highly Compensated Employee
[13] IRS Sample Plan Provisions
§ 6.04 Nondiscrimination Prior to 1989
[1] Nondiscriminatory Coverage
[2] Nondiscriminatory Contributions and Benefits
[3] Top Heavy Plans
[4] Comparability as to Contributions or Benefits
[5] Vesting
[6] Termination of Plan or Discontinuance of Contributions
[7] Investments
§ 6.05 Nondiscrimination Requirements After 1988
[1] Nondiscrimination in Amount of Contributions or Benefits
[2] Nondiscriminatory Availability of Benefits, Rights and Features
[3] Nondiscriminatory Effect of Plan Amendments and Terminations
[4] Employee Contributions
[5] Permitted Disparity
[6] Cross-Testing Defined Benefit and Defined Contribution Plans
[7] Definition of a Plan and Plan Aggregation
[8] Plan Restructuring
[9] Testing of Plans with Respect to Former-Employees
[10] Additional Rules
[11] Transition and Fresh-Start Rules
[12] Effective Dates
[13] EGTRRA Modification of Top-Heavy Rules
§ 6.06 Compensation Requirements
[1] Definition of Compensation
[2] Limitation on Annual Compensation for Qualified Plans
[3] Effective Dates
[4] Compensation Limits Increased by EGTRRA
§ 6.07 Nondiscrimination and Qualification Requirements for Welfare Benefit Plans
[1] Nondiscrimination Rules
[2] Qualification Standards
[3] Nondiscrimination Standards Prior to Section 89 Repeal
[4] Testing for Nondiscrimination
[5] Operating and Special Rules
[6] Valuation
[7] Benefits Other Than Life and Health
§ 6.08 Multiemployer Plan Qualification Requirement
[1] IRS Multiemployer Examination Program
[2] Preventing Sanctions and Disqualification

CHAPTER 7
Integration

§ 7.01 Consideration of Social Security Benefits
§ 7.02 General Aspects of Integration
§ 7.03 The 37 1/2% Rule
§ 7.04 Definitions
[1] Integrated Plan
[2] Taxable Wage Base
[3] Integration Level
[4] Excess Plan
[5] Offset Plan
[6] Normal Retirement Age
[7] Normal Retirement Benefits
[8] Average Annual Compensation
[9] Covered and Compensation
§ 7.05 Flat-Benefit Excess Plans
[1] Normal Annual Retirement Benefit
[2] Death Benefits Before Retirement
[3] Pre- and Post-Retirement Annuity Benefits
[4] Retirement Forms Other Than Straight Life Annuity
[5] Normal Retirement with Less Than Fifteen Years of Service
[6] Early Retirement
[7] Benefits in Case of Disability Before Age Sixty-Five
[8] Employee Contributions
§ 7.06 Unit-Benefit Excess Plans
[1] Integration Level
[2] Adjustments
[3] Death Benefit Before Retirement
[4] Pre-Retirement 50% Joint and Survivor Annuity Benefits
[5] Retirement Forms Other Than Straight Life Annuity
[6] Early Retirement
[7] Benefits in Case of Disability Before Age Sixty-Five
[8] Employee Contributions
§ 7.07 Offset Plans
[1] Death Benefits Before Retirement
[2] Retirement Forms Other Than Straight Life Annuity
[3] Early Retirement
[4] Benefits in Case of Disability Before Age Sixty-Five
§ 7.08 Money Purchase Plans
[1] Integration Level
§ 7.09 Profit-Sharing Plans
[1] Benefits Only Upon Retirement or Separation from Service
[2] Nondiscriminatory Allocations
§ 7.10 Step-Rate Excess Plans
[1] Plans with Two Integration Levels
[2] Minimum Benefits or Contributions
[3] Wage-Bracket Plans
§ 7.11 Integration After 1988
[1] Defined Contribution Plans
[2] Defined Benefit Plans
[3] Defined Benefit Offset Plans
[4] Plans Not Eligible to Use Section 401(1)
[5] Permitted Disparity Under Defined Contribution Plans
[6] Permitted Disparity for Defined Benefit Plans
[7] Railroad Plans
[8] Overall Permitted Disparity
[9] Special Rules for Final Pay Plans
[10] Plans Maintained by More than One Employer

CHAPTER 8
Funding

§ 8.01 Employee Trusts
§ 8.02 Definitions
[1] Trustee
[2] Trustor
[3] Fiduciary
[4] Beneficial Interest
[5] Agent-Trustee Relationship
§ 8.03 Funding Instruments
[1] Trusts
[2] Individual-Contract Plans
[3] Group Annuity Contracts
[4] Split Funding Contract
[5] Employers Participating in a Single Plan
[6] Multiple Trusts Under One Plan
[7] Pooled Fund Arrangements
[8] Funding Through Custodial Accounts and Annuity Contracts
[9] Variable Annuities
§ 8.04 Minimum Funding Standards Prior to 2008
[1] Impact of ERISA
[2] Minimum Annual Funding Requirements
[3] Normal Cost and Unfunded Past-Service Liabilities
[4] Funding Standard Account
[5] Alternative Minimum Funding Standard Account
[6] Full Funding Limitation
[7] Initial Past-Service Costs
[8] Plan Amendments
[9] Experience Gains and Losses
[10] Valuation of Assets
[11] Waiver of Funding Requirements
[12] Extension of Amortization Periods
[13] No Increase in Benefits During Waiver Period
[14] Plans Exempt from Funding Standards
[15] Notice to Participants and Beneficiaries in Underfunded Plans
[16] The Pension Funding Equity Act
§ 8.05  Funding Rules for Single-Employer Defined Benefit Pension Plans Under the Pension Protection Act of 2006
[1] In General
[2] Funding Rules for Plan Years Beginning After 2007
[3] Benefit Limitations Under Single-Employer Defined
[4] Restrictions on Funding of Nonqualified Deferred Compensation Plans by Employers Maintaining Underfunded or Terminated Single-Employer Plans
§ 8.06 Funding Rules for Multiemployer Defined Benefit Plans Under the Pension Protection Act of 2006
[1] Funding Rules for Multiemployer Defined Benefit Plans
[2] Additional Funding Rules for Multiemployer Plans in Endangered or Critical Status
[3] Measures to Forestall Insolvency of Multiemployer Plans
[4] Withdrawal Liability Reforms
[5] Special Rule for Certain Benefits Funded Under an Agreement Approved by the PBGC
[6] Exception from Excise Tax for Certain Multiemployer Pension Plans
§ 8.07  Interest Rate Assumptions
[1] Interest Rate Assumption for Determination of Lump-Sum Distributions
[2] Interest Rate Assumption for Applying Benefit Limitations to Lump-Sum Distributions
§ 8.08 Pension Benefit Guaranty Corporation (PBGC) Guarantee and Related Provisions
[1] PBGC Premiums
[2] Limitations on PBGC Guarantee of Shutdown and Other Benefits
[3] Rules Relating to Bankruptcy of the Employer
[4] PBGC Premiums for Small Plans
[5] Rules for Substantial Owner Benefits in Terminated Plans
[6] Acceleration of PBGC Computation of Benefits
[7] Treatment of Certain Plans When There Is a Cessation or Change in Membership of a Controlled Group
[8] Missing Participants
§ 8.09 Defined Benefit Plan Funding Notice
[1] In General
[2] Access to Multiemployer Pension Plan Information
[3] Additional Annual Reporting Requirements and Electronic Display of Annual Report Information
[4] Section 4010 Filings with the PBGC
[5] Disclosure of Plan Termination Information to Plan Participants
[6] Notice of Freedom to Divest Employer Securities
[7] Periodic Pension Benefit Statements
[8] Notice to Participants or Beneficiaries of Blackout Periods

CHAPTER 9
Plan Termination

§ 9.01 Impact on Qualification
[1] Business Necessity
[2] IRS Notification
[3] Vesting on Termination
[4] Actual Terminations
[5] Complete Discontinuance
[6] Proposed Termination
[7] Effect on Prior Status if Terminated with Valid Reason
[8] Effect on Prior Status if Terminated Without Valid Reason
[9] Termination Limitations
[10] Discrimination in Operation
[11] Suspensions
[12] Frozen Plans
[13] Missing Participants
§ 9.02 Single-Employer Plan Termination Insurance Program
[1] Insuring Agent
[2] Benefits Guaranteed
[3] Premiums
[4] Plans Insured by the PBGC
[5] Reportable Events
[6] Plan Termination
[7] Standard Termination
[8] Distress Termination
[9] Plan Termination by the PBGC (Involuntary Termination)
[10] Termination Date
[11] Annual Report
[12] Allocation of Assets on Plan Termination
[13] Plan Termination Liability
[14] Plan Mergers and Splits
§ 9.03 Multiemployer Plan Termination Program
[1] In General
[2] Multiemployer Plan Defined
[3] Employer Withdrawal Liability
[4] Reorganization of Multiemployer Plans
[5] Benefits Guaranteed
[6] Premiums
[7] Termination of Multiemployer Plans
[8] Enforcement

Volume 2

CHAPTER 10
Reporting and Disclosure

§ 10.01 In General
§ 10.02 Plans Covered by the Reporting and Disclosure Requirements
[1] Statutory Exemptions
[2] Practices and Arrangements
[3] Severance Payments
[4] Gratuitous Payments to Retirees
[5] Limited Exemptions
[6] Courts Rule on ERISA Coverage
§ 10.03 Reporting to Governmental Agencies
[1] Initial Filings with the Internal Revenue Service
[2] Initial Filings with the Department of Labor
[3] Initial Filings with the Pension Benefit Guaranty Corporation
[4] Ongoing Filings with the Internal Revenue Service
[5] Ongoing Filings with Department of Labor
[6] Form PBGC-1
[7] PBGC Section 4010 Filings
§ 10.04 Special-Event Reporting
[1] Internal Revenue Service
[2] Department of Labor
[3] Pension Benefit Guaranty Corporation
§ 10.05 Disclosure to Participants
[1] In General
[2] Participant Covered Under Plan
[3] “Automatic” Disclosure
[4] Disclosure Upon Request
[5] Disclosure Upon Examination
[6] Electronic Disclosure
[7] Pension Benefit Statements—Reporting of Permitted Disparity
[8] Disclosure of Termination Information to Plan Participants
§ 10.06 Liability for Inaccurate Disclosure
[1] In General
[2] Potential Liability
[3] Promissory Estoppel
[4] Disclaimer as Protection
[5] Misleading Communications
[6] Duty to Inform of Plan Termination
[7] Rules to Follow
§ 10.07 Health Plan Continuation Coverage
[1] In General
[2] Small Employer Exemption
[3] Qualified Beneficiary
[4] Qualifying Event
[5] Type of Coverage Required
[6] Coverage Period
[7] Cost of Continuation Coverage
[8] Notice Requirements
[9] Election
[10] Disabled Employees
[11] Preexisting Conditions and Other Group Coverage
[12] New Definitions of Covered Employee
[13] Medicare Entitlement
[14] Alternative Notification and Coverage Period
[15] Sanctions
[16] Regulations
[17] Military Reservist Considerations
[18] Family and Medical Leave Act of 1993 (FMLA)
[19] Effective Date
[20] Litigation on COBRA Health Insurance Notice
[21] COBRA Regulations for Group Health Plans
[22] Stimulus Legislation’s Significant Changes to Continued Health Coverage Under COBRA
§ 10.08 Disclosure Requirements Under Section 89(k)
[1] In General
[2] Itemized Requirements
§ 10.09 Legal Compliance
[1] In General
[2] Communications Issues
§ 10.10 Required USERRA Notice
[1] Background
[2] USERRA Rights Notice

CHAPTER 11
Employment Discrimination Law

§ 11.01 Application to Employee Benefit Plans
§ 11.02 Sources of the Equal Employment Obligation
[1] Title VII of the Civil Rights Act of 1964
[2] The Equal Pay Act
[3] The Age Discrimination in Employment Act
[4] Executive Order 11246
[5] Rehabilitation Act of 1973; Vietnam Era Veterans Readjustment Assistance Act of 1974
[6] The Americans with Disabilities Act of 1990 (ADA)
[7] Family and Medical Leave Act of 1993
[8] Health Insurance Portability and Accountability Act of 1996
[9] Genetic Information Nondiscrimination Act of 2008
[10] Mental Health Parity Act of 1996
[11] Other Federal Legislation
[12] State and Local Laws
[13] Domestic Partner Benefits and the Equal Benefits Ordinance
[14] Lilly Ledbetter Fair Pay Act of 2009
§ 11.03 Prohibited Discrimination
[1] In General
[2] Mandatory Retirement and ADEA
[3] Sex Discrimination in Plan Contributions and Benefits
[4] Service Credit for Military Leave
[5] Disclosure of Medical Information
[6] Part-Time Employees

CHAPTER 12
Fiduciary Responsibility

§ 12.01 In General
§ 12.02 Coverage
§ 12.03 Identifying the ERISA Fiduciary
[1] Directors as Fiduciaries
[2] Investment Advice and Fiduciary Status
[3] Parties-in-Interest
[4] IRS Disqualified Persons Definition
[5] Claims Administrator with Discretionary Control Is Functional Fiduciary
§ 12.04 Particular Plan Requirements
[1] In General
[2] Mandatory Plan Requirements
[3] Plan Amendment Procedure Litigation
[4] Mandatory Trust Requirements
[5] Requirements that Plan Assets Be Held for Exclusive Benefit of Plan Participants
[6] Standard of Fiduciary Review
[7] Legal Pitfalls in Welfare Benefit Plan Documentation
[8] Terminated Plan Participants May Pursue Fiduciary and Prohibited Transaction Claims Arising from Hostile Takeover
§ 12.05 Fiduciary Standards
[1] General Standards
[2] Prudent Man Rule
[3] Diversification of Plan Investments
[4] Adherence to Plan Documents
[5] Labor Department Guidance on Fiduciary Duties in Connection with Mutual Fund Abuses
[6] Litigation Over Hidden Section 401(k) Fees and Regulatory Reaction
[7] Subprime Mortgage Crisis Impacts ERISA Plan Investment in Employer Stock
§ 12.06 Allocating Fiduciary Responsibility
[1] Cofiduciary Responsibility
[2] Categorizing Fiduciary Responsibility
[3] Limiting Responsibility
[4] Limited Responsibility
[5] Non-Fiduciary Liability
§ 12.07 Indemnification and Fiduciary Liability Insurance
[1] Accountability
[2] Increased Risk of Liability
[3] Insurance Permitted
§ 12.08 Rule Prohibiting Transactions Between Plan and Party-in-Interest
[1] In General
[2] Prohibited Transactions
[3] Fiduciary Self-Dealing Transactions
[4] Special Rules Covering Financial Institutions
[5] Insurance/Annuities
[6] Contribution of Property Constitutes Prohibited Transaction
[7] Administrative Exemptions
[8] Adoption and Expansion of the DOL Voluntary Fiduciary Correction Program (“VFCP“)
§ 12.09 Y2K Fiduciary Liability: Important Steps for Other Contingency Planning
[1] Introduction
[2] Specifics of Guidance
[3] The Y2K Dilemma
[4] Impact of DOL Warnings
[5] Taking Action
[6] Impact of ERISA
[7] Fiduciary Insurance Coverage
[8] DOL Sample Fiduciary Questions Regarding the Year 2000 Problem Provided to PWBA Investigators
§ 12.10 Plan Expenses
[1] Fiduciary Duty to Identify and Monitor Plan Expenses
[2] Allocation of Plan Expenses Among Plan Participants and Beneficiaries
[3] Reporting and Disclosure Implications
[4] FAB 2003-3 and Its Relationship to the Internal Revenue Code
[5] IRS Guidance on Plan Expenses in Response to DOL FAB 2003-3
§ 12.11 Sanctions
[1] Civil Penalties
[2] Criminal Penalties
[3] The Excise Tax
§ 12.12 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

CHAPTER 13
Plan Mergers

§ 13.01 In General
§ 13.02 Forms of Corporate Reorganization
[1] Buyer Acquires Subdivision of Seller
[2] Buyer Acquires All of the Assets of Seller
[3] Buyer Acquires Stock of Seller or Merges Seller in Buyer or a Subdivision of Buyer
[4] Reorganization Impact Chart
§ 13.03 Consideration to Be Applied in Reviewing Alternative Courses of Action
[1] The Impact of the Course of Action Upon Purchase or Sale Price
[2] Future Risk
[3] Tax Deductions
[4] Administrative Burdens
[5] Employee Communication
§ 13.04 Tax Requirements and Qualification for Deductibility
[1] Fundamental Principle
[2] Mergers
[3] Transfers of Assets or Liabilities
[4] Separate Accounting Assets
[5] Merger of Defined Benefit Plans
[6] De Minimis Rule for Merger of Defined Benefit Plans
[7] Defined Contribution Plans
[8] Spinoffs
[9] Merger and Spinoff Rules Apply to Transfer of Assets and Liabilities
§ 13.05 Contingent Liabilities in the Merger of Employee Benefit Plans
[1] Section 4062 Liability
[2] The Controlled Group
§ 13.06 Acquisition Patterns; The Seller’s Point of View
[1] Plan Termination
[2] Freezing Plans
[3] Assumption
[4] Continuation
§ 13.07 Acquisition Patterns; The Buyer’s Point of View
[1] Plan Termination
[2] Freezing Plans
[3] Assumption
[4] Continuation
[5] Potential Liabilities
§ 13.08 Reporting and Disclosure Requirements for Employee Benefit Plans in Mergers and Acquisitions
[1] Plan Termination
[2] Freezing Plans
[3] Assumption
[4] Merger, Consolidation or Transfer of Plan Assets
§ 13.09 Requirements for Multiemployer Plans
[1] Mergers with and Transfers Between Multiemployer Plans
[2] Mergers with and Transfers to Single Employer Plans
[3] Partition of Multiemployer Plan
[4] Asset Transfer Rules
[5] Transfers Relating to Change in Bargaining Representative
§ 13.10 Mergers and Acquisitions—Cash Balance and Other Hybrid Plans
[1] Cash Balance and Other Hybrid Plans
[2] Mergers and Acquisitions

Appendices
Key to Abbreviations
Table of Cases
Index