ML BeneBits

Publicly traded companies generally file registration statements on Form S-8 to register the offering of the company’s stock pursuant to the company’s equity incentive plans under the Securities Act of 1933, as amended (Securities Act). This same filing requirement applies under certain circumstances to a company’s nonqualified deferred compensation plans.

In January 2022, the Internal Revenue Service (IRS) changed the withholding election rules applicable to distributions from pension plans (a term that includes 401(k) plans, money purchase pension plans and defined benefit pension plans). Specifically, the IRS issued a revised Form W-4P, to be used for reporting periodic payments only (such as monthly pension payments) and creating a new Form W-4R, to be used for nonperiodic payments (such as lump sum distributions and eligible rollover distributions). Use of the new forms was optional for 2022 but became mandatory as of January 1, 2023.

The US Department of Labor (DOL) recently issued DOL Advisory Opinion 2023-01A, (Advisory Opinion) addressing racial equity and supplier diversity. The Advisory Opinion answered an inquiry about the application of ERISA’s fiduciary duty requirements to an employer’s racial equity program.

As discussed in a previous LawFlash, the US Department of Labor’s Final Rule on Prudence and Loyalty in Selecting Plan Investment Options, also known as the ESG Rule, contains provisions on proxy voting, which are not limited to environmental, social and governance issues. As a reminder, the ESG Rule, including the changes regarding proxy voting, will go into effect on December 1, 2023.

Since its effective date in February 2023, the Department of Labor’s (DOL’s) rule officially titled Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, and colloquially called the “ESG rule,” has been challenged in both the courts and US Congress. In September 2023, a federal district court in one of the two court challenges ruled in favor of the DOL and its authority to adopt the ESG rule.

With the expiration of COVID-19 pandemic relief suspending loan payments and interest accruals on federal student loans (interest accruals resumed September 1 and loan payments are set to resume in October), now is a good time for employers to take a closer look at the student loan matching contribution feature of the SECURE 2.0 Act of 2022 (SECURE 2.0).

The Consolidated Appropriations Act, 2021 (CAA), requires group health plans and insurers to annually attest that they are in compliance with the gag clause prohibition under the CAA. The first attestation is due no later than December 31, 2023 and covers the period from the date of the enactment of the CAA on December 27, 2020 through the date of the attestation. Future attestations will be due each subsequent December 31 and will cover the period since the last attestation was completed.

The Internal Revenue Service (IRS) recently issued IR-2023-144 (the Notice), warning stakeholders of compliance issues associated with employee stock ownership plans (ESOPs) related to the tax liability of high-income taxpayers. Although it is unclear what prompted the Notice, the IRS’s intent is clear—it has a new enforcement focus on ESOP-related tax avoidance, particularly with respect to S corporation ESOPs.

To the great relief of many plan sponsors, administrators, recordkeepers, and payroll vendors, the IRS issued highly anticipated relief regarding the mandatory "Rothification" of catch-up contributions.

Recent action taken by the Pension Benefit Guaranty Corporation (PBGC) and the US Department of Labor (DOL) will affect plans that are eligible for, or have received, special financial assistance (SFA). SFA-eligible plans should note the new guidance when applying for SFA.