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Matthew H. Hawes, Michael Gorman, Timothy J. Durbin

ML BeneBits

EXAMINING A RANGE OF EMPLOYEE BENEFITS
AND EXECUTIVE COMPENSATION ISSUES

What Public Companies Should Consider Since the NYSE and Nasdaq Have Issued Proposed Clawback Listing Standards

By Erin Randolph-Williams , Mims Maynard Zabriskie , and Timothy J. Durbin
// March 09, 2023
On October 26, 2022, the US Securities and Exchange Commission (SEC) announced the adoption of its new rules directing national securities exchanges, including the New York Stock Exchange (NYSE) and the Nasdaq Stock Market (Nasdaq), to establish listing standards for compensation recovery (clawback) policies. In accordance with the SEC’s clawback rule, both the NYSE and Nasdaq submitted their clawback proposals to the SEC on February 22, 2023. This blog post offers guidance on compliance and implementation deadlines pursuant to these proposals, as well as what public companies need to do in the coming months to ensure timely adoption.
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Topics: Corporate Governance, Employment Counseling, Executive Compensation, Financial Services, Institutional Investors

Code Section 139 Relief Period Scheduled to End: What Employers Need to Know

By Mary B. Hevener , Steven P. Johnson , and Anna M. Pomykala
// March 01, 2023
As the Code Section 139 relief period is scheduled to end soon along with the end of the COVID-19 national emergency, employers that assisted employees with personal expenses attributable to the COVID-19 pandemic should consider taking certain steps before the period ends.
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Topics: Benefits & Payroll Tax, Fringe Benefits and Payroll Tax

ESG Rule Challenged in Congress and Courts

By Elizabeth S. Goldberg and Rachel Mann
// March 01, 2023
Both the US House of Representatives and the Senate passed a resolution to overturn the US Department of Labor’s so-called “ESG Rule” on February 28 and March 1, 2023, respectively. The ESG Rule has been a topic of debate as it sought to clarify the role that environmental, social, and governance (ESG) factors can play in fiduciary decision-making on behalf of retirement plans regulated by ERISA. This resolution is part of a larger effort to limit ESG investing at both federal and state levels.
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Topics: ERISA Fiduciary Duty, Labor, Employment & Benefits, Retirement Plan Design and Administration

DOL Continues Active ERISA Enforcement and Focus on Cybersecurity, Including Health and Welfare Plans

By Saghi Fattahian , Elizabeth S. Goldberg , Michael Gorman , and Emily Jordan
// February 16, 2023
The Employee Benefits Security Administration (EBSA) of the US Department of Labor (DOL) has continued to be active in civil and criminal enforcement investigations of ERISA’s fiduciary duties. This blog post details two recent updates concerning the DOL’s ERISA enforcement program.
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Topics: ERISA Fiduciary Duty, Health and Welfare Plan Design and Administration, Labor, Employment & Benefits

SECURE 2.0: Challenges for Taft-Hartley Multiemployer 401(k) Plan Administration

By Mary A. Petrovic , Althea R. Day , and Daniel R. Salemi
// February 15, 2023
The SECURE Act 2.0 makes changes to the US employer retirement plan system with respect to both single employer plans and to “applicable collectively bargained plans.” Applicable collectively bargained plans are defined in the statute as plans maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers, i.e., multiemployer plans.
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Topics: Labor, Employment & Benefits, SECURE Act Updates and Developments

IRS Proposes to Make Remote Witnessing of Spousal Consents Permanent

By Mark J. Simons and R. Randall Tracht
// February 10, 2023
The IRS proposed a revised version of Treas. Reg. § 1.401(a)-21 (the Proposed Regulation) that, if finalized, would make permanent the option of remote witnessing of required spousal consents to certain retirement plan distribution elections and loan elections. The IRS had temporarily authorized remote witnessing in limited circumstances during the COVID-19 pandemic as a matter of practical necessity. The Proposed Regulation, issued on December 30, 2022, makes remote witnessing permanent, effective six months after the Proposed Regulation is finalized by the IRS. Until that finalization date, the IRS notes that taxpayers may rely on the rules set forth in the Proposed Regulation.
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Topics: Labor, Employment & Benefits, Retirement Plan Design and Administration

Multiemployer Pension Plans Seeking Special Financial Assistance Can Now Request Relief from Withdrawal Liability Conditions

By Mary A. Petrovic and Daniel R. Salemi
// February 09, 2023
The Pension Benefit Guaranty Corporation (PBGC) is now allowing multiemployer pension plans that are applying for special financial assistance (SFA) to request relief from the standard withdrawal liability calculation requirements that would otherwise apply under the PBGC’s original final rule under 29 CFR Part 4262 (the Original Final Rule). The Original Final Rule, which took effect in August 2022, created various conditions for multiemployer plans receiving SFA, including conditions on the calculation of withdrawal liability.
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Topics: Labor, Employment & Benefits, Multiemployer Plans

Plan Sponsors and Administrators: Prepare for the End of the COVID-19 Emergency

By Saghi Fattahian , Allison J. Fepelstein , Robert M. Hunter , Emily M. Rickard , and Jonathan Zimmerman
// February 03, 2023
The Biden administration intends to end the national emergency and public health emergency declarations (Emergency Declarations) attributable to the COVID-19 pandemic on May 11, 2023. The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans that will sunset at the conclusion of the Emergency Declarations. It remains to be seen what, if any, guidance will come from the regulatory agencies outlining how these mandates will be phased out or, potentially, if any continuing obligations will remain.
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Topics: Benefits & Payroll Tax, Employment Counseling, ERISA/Employee Benefits Litigation, Health and Welfare Plan Design and Administration, Labor, Employment & Benefits

SECURE Act 2.0: Impact on ESOPs

By Emily M. Rickard and Brian D. Hector
// February 01, 2023
The SECURE 2.0 Act of 2022 (SECURE Act 2.0) makes far-reaching changes to the US retirement plan system. Our initial SECURE Act 2.0 LawFlash provided a general overview of its significant provisions. This blog post—one in our series of coverage on SECURE Act 2.0—focuses on provisions unique to employee stock ownership plans (ESOPs).
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Topics: ESOPs, Labor, Employment & Benefits

Check Out Our Resources on the SECURE Act 2.0

January 18, 2023
We have launched a centralized portal, SECURE Act 2.0: Updates and Developments, which will be updated to add our publications closely examining SECURE Act 2.0 as they are published and aggregate our insights and analyses of the act.
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