ML BeneBits

The US Department of Labor (DOL) final amendment to Prohibited Transaction Class Exemption 84-14, the so-called QPAM Exemption that is commonly relied upon by investment managers for ERISA-governed employee benefit plans and individual retirement accounts to avoid potential prohibited transaction issues, was published in the Federal Register on April 3, with the changes becoming effective on June 17, 2024.

Recent headlines involving the Central States Teamsters Pension Fund and the Pension Benefit Guaranty Corporation’s (PBGC) Special Financial Assistance (SFA) Program highlights an issue with meaningful consequences for multiemployer defined benefit plans—unreported deceased participants. In fact, PBGC’s alleged overpayment of $127 million under the American Rescue Plan Act’s SFA Program covering an estimated 3,500 deceased participants sparked PBGC to implement specific death certification measures for future applicants to the SFA Program.

When private equity investment transactions close, management and private equity investors are off to the races—generally aligned on strategic and financial objectives. However, as market conditions and the economic climate shift, key parties may become misaligned and management incentive plans (MIPs) could become underwater or ineffective.

Effective May 28, 2024, following recent changes to US Securities and Exchange Commission and NASDAQ Stock Market rules, most standard broker-dealer securities transactions will have to be settled within one business day after the Deposit Withdrawal at Custodian date (DWAC or trade date). This will likely have significant federal employment tax implications for employers that compensate employees through nonqualified stock option or stock award programs since employers will have one less day to calculate the withholdings owed with respect to employees’ equity compensation and deposit those withholdings with the IRS and state tax authorities.

The US Supreme Court heard arguments on January 17 in Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo. In both cases, a commercial herring fishing company challenged a regulatory requirement that the company cover the costs of an observer required to ride along on the fishing boat to confirm compliance with various regulatory requirements.

Fiduciary committees have long been established in connection with retirement plans to manage the investment, legal compliance, and operational risks that can arise under the Employee Retirement Income Security Act of 1974, as amended (ERISA). Since the enactment of the Patient Protection and Affordable Care Act (ACA) and, more recently, the Consolidated Appropriations Act, 2021 (CAA), welfare plan fiduciaries continue to take on increasing compliance responsibilities. Given the increased legal complexity of welfare plan administration, it may be time to consider establishing an administrative committee to help mitigate the various risks involved with managing a welfare plan.

Besides being Valentine’s Day, February 14, 2024 is an important day for employers with any California employees: It is the last day for employers to notify California employees (including former employees who were employed after January 1, 2022) that any unlawful noncompetes applicable to them are void. These notices need to be specific to each employee and individually addressed, and so will likely involve some investment in time and effort by employers to ensure compliance with the law.

US state and federal laws have increasingly sought to regulate environmental, social, and governance (ESG) investing—a trend that continued in 2023. This increased regulatory focus has impacted benefit plans, including ERISA plans and, especially, public retirement plans.

The letter of intent has been executed. The due diligence is done. The purchase agreement is signed. The money has been wired. The deal has closed. You’re done—back to business as usual! Think again. For the folks responsible for employee benefits matters, whether it be the CEO, CFO, comptroller, or human resources team, the real work after a merger or acquisition may be just beginning.

Effective as of January 1, 2023, payors of qualified plan distributions have been required to use a redesigned IRS Form W-4P for payee withholding elections on periodic payments and a new Form W-4R for nonperiodic payments and eligible rollover distributions. Since then, we have fielded myriad questions on the new forms, from the basic requirements for their use and who is responsible for implementation to interpreting long-standing qualified plan withholding regulations that have not yet been fully updated to align with the new forms.