Practice Areas & Industries: Jackson Lewis P.C.


Employee Benefits Counseling and Litigation Return to Practice Areas & Industries

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Practice/Industry Group Overview

Jackson Lewis provides comprehensive legal advice, counseling and representation to plan sponsors, plan fiduciaries, insurers and benefit plans relating to:

  • employee benefits issues arising in the design, administration, and operation of benefit and compensation arrangements,
  • the defense of benefit, fiduciary and other claims relating to plan operation, and the enforcement of their reimbursement, subrogation and other rights under the terms of the plan and law, and
  • the protection, handling and use of employee-related data under both federal and local requirements.

Benefits Counseling

Our Practice Group encompasses representation in virtually all aspects of employee benefits law, including counseling with regard to the administration and establishment of tax-qualified pension, profit-sharing and stock bonus plans, as well as non-qualified plans. The firm is actively engaged in assisting clients in administration and compliance efforts regarding health, welfare and related fringe benefit programs -- areas which have become the subject of increased regulation, employee claims and litigation. Consistent with the firm's commitment to preventive programs, Jackson Lewis provides benefits-related counseling with a view to minimizing the likelihood of liabilities associated with benefit claims, litigation and enforcement matters.

What follows is a summary of the areas in which we provide benefits-related legal services:

  1. Benefit Plan Operation and Compliance

We counsel clients on legal issues affecting the operation of benefit plans, including:

  • Compliance with statutory requirements imposed by ERISA, the Internal Revenue Code, federal and state employment laws, and federal labor laws, including the adoption and implementation of required legislative and regulatory changes.
  • Review of plan documents, trust agreements, funding agreements, administrative agreements, summary plan descriptions and other documents governing plan operation.
  • Review of communications and notices to determine accuracy and consistency with the texts of plans and summary plan descriptions.
  • Reviewing whether appropriate fiduciary structure, delegations and allocations of fiduciary authority, and written procedures for same are in place.
  • Review and advice concerning procedures regarding administrative operations, including maintaining appropriate records, monitoring adequacy of communications with plan participants and beneficiaries, recognizing and correcting administrative problems, review and implementation of Qualified Domestic Relations Orders (QDRO's) and Qualified Medical Child Support Orders (QMCSO's), correct and timely filing of required governmental reports.
  • Review minutes of meetings of plan committees, both fiduciary and administrative, to determine adequacy of the records and recommend any needed procedural changes.
  • Reviewing whether delegations of authority and out-sourcing of benefits work are adequately implemented and documented and procedures exist to monitor the operations of third-party vendors and administrators.
  • Representation of clients before the federal agencies charged with statutory enforcement: Internal Revenue Service, the Department of Labor and the Pension Benefit Guaranty Corporation.
  1. Retirement and Deferred Compensation Plans

We provide practical advice to clients on legal issues affecting the design, drafting, implementation, administration, and termination of tax-qualified and nonqualified retirement plans, including:

  • Compliance with the tax-qualification and ERISA requirements applicable to pension, profit-sharing and § 401(k) arrangements, and 403(b) plans. Tax treatment of plan contributions, funding and distributions.
  • Correction of tax-qualification defects under the IRS’ employee plans compliance resolution program (EPCRS), including voluntary correction programs such as self-correction under APRSC and IRS approved correction under VCR.
  • Analysis of claims for benefits under the terms of the plan’s governing instruments and applicable law, including aiding claims fiduciaries in the drafting of legally sufficient determinations and analysis of domestic relations orders to determine QDRO status.
  • Coordination of projects with other benefit professionals (including plan actuaries, record keepers, and third party administrators) to achieve cost efficient and sound results for administrative issues and planning projects.
  • Supplemental executive "top-hat" retirement plans and other deferred compensation plans, including design of vehicles to secure plan benefits, such as Rabbi trusts, compliance and options for design under section 409A of the Internal Revenue Code, as well as short-term and long-term incentive arrangements.
  1. Welfare and Fringe Benefit Plans

We counsel clients on legal issues affecting the structure and administration of health and welfare, and tax-favored fringe benefit plans, including:

  • Health and welfare plans, including self-insured plans, cafeteria and flexible benefits plans and compliance with laws applicable to health plans, such as COBRA, HIPAA, tax and applicable employment nondiscrimination rules.
  • Other tax-favored fringe benefit plans, including education assistance programs, dependent care expense reimbursement programs, transportation allowances, and employee discounts.
  • Welfare benefit arrangements, and their tax consequences, for non-traditional family structures, such as domestic partner benefit arrangements.
  • Analysis of claims for benefits under the terms of the plan’s governing instruments and applicable law, including aiding claims fiduciaries in the drafting of legally sufficient determinations.
  • Strategies with respect to retiree and other post-employment health and welfare plan issues, including restructuring and termination of those arrangements in the collectively-bargained and non-collectively bargained contexts.
  • Coordination of projects with other benefit professionals (such as plan actuaries, record keepers, and third party administrators) to achieve cost efficient and sound results for administrative issues and planning projects.
  1. Corporate Transactions and Workforce Reorganizations

1. Mergers and Acquisitions

We counsel clients on all employee benefit issues affected by corporate transactions and reorganizations, including:

  • Counseling with regard to negotiating strategies for either a buyer or seller in stock and asset purchases, mergers and related transactional matters with a view to minimizing liabilities associated with employee benefit programs, including strategies for collectively bargained benefits and multiemployer plans.
  • Due diligence and analysis of legal obligations rega rding pension, welfare and fringe benefit programs and their effects in the context of mergers, acquisitions and dispositions.
  • Negotiation and preparation of employee benefit related provisions of purchase and sale agreements and associated documents.

2. Workforce Reductions

We advise clients on the design and implementation of workforce reduction programs, including:

  • Analysis of legal obligations regarding pension, welfare and fringe benefit programs and their effects in the context of reductions in force, layoffs, facility closures, early retirement incentive programs and other workforce reorganizations.
  • Design, drafting and implementation of reduction in force severance benefit programs and early retirement incentive programs.
  1. Plan Terminations
  • Consulting on potential under-funding liabilities.
  • Counseling regarding plan termination procedures and filings.
  1. Multiemployer Pension Plan Liabilities
  • Counsel and representation in disputes involving claims of withdrawal liability.
  • Representation regarding withdrawal liability issues in workforce reductions and transactions.
  • Advice regarding special industry rules under MPPAA. Significant experience with regard to the trucking, construction, hotel and retailing industries.
  • Advice regarding business reorganization planning and facility moves and shutdowns in light of complete and partial withdrawal liability rules.
  • Counseling employers and employer groups regarding collective bargaining strategies with respect to underfunded plans and negotiations with fund trustees and unions over approaches to contributions and funding with respect to underfunded plans.

ERISA Litigation

Jackson Lewis represents employers, plans, insurers, plan administrators, and third party administrators in the area of employee benefits litigation. Our firm is routinely called upon to provide representation in ERISA and related benefits litigation in virtually all 50 states. This litigation involves both mainstream ERISA litigation as well as complex benefits litigation.

A. Mainstream ERISA Litigation

Our ERISA litigation practice encompasses defense of single party as well as multi-party lawsuits associated with the entire range of employee benefits, including claims involving group health, life, disability, severance and other welfare benefits; executive compensation; pension benefits; and ERISA's non-interference provision. We also defend claims on individual policies of insurance which may be outside of ERISA and are governed by state law. As noted above, we represent plans, insurers, claims and plan administrators, third party administrators and employers who are drawn into ERISA litigation. This representation typically involves defending claims for benefits due, for breach of fiduciary duty and for statutory penalties. We also represent insurers and plans seeking to enforce subrogation and reimbursement provisions and have filed interpleader actions across the country where insurers and plans are faced with conflicting claims for life and other benefits. Our experience includes active representation in state and federal courts and arbitral forums, including injunctive matters and appellate practice.

Our experience also extends to actions involving claims under non-ERISA arrangements, including claims in connection with governmental plans.

Jackson Lewis also has extensive experience defending benefit lawsuits in significant quantity. By way of example, we represent insurers and benefit plans on a national basis in numerous "mainstream" ERISA lawsuits involving disability, life and health claims. Again, our ability to handle a large caseload for a particular insurer, large employer, or employer-sponsored plan is enhanced by our national presence and extensive substantive knowledge of ERISA's statutory and regulatory scheme and the constantly developing case law interpreting ERISA.

B. Complex ERISA Litigation

The prominence which Jackson Lewis occupies in the field of workplace law includes frequent representation of our clients in class actions and multi-plaintiff litigation in the context of benefit disputes. As a result, our litigators routinely handle the full breadth of issues customarily encountered in such actions, including, for example, resolving the case through early dispositive motions which isolate key ERISA issues, defending and defeating class discovery and class certification, minimizing discovery issues encountered in complex litigation, evaluating structured class settlements and, of course, formulating and engaging in proactive strategies to achieve the goals of the client.

Further, because of our firm’s extensive experience in workplace law, Jackson Lewis is uniquely qualified to handle multi-plaintiff and class action employee benefits litigation for a number of reasons. First, our litigators routinely confront procedural and practical issues common to large legal actions involving numerous plaintiffs. Second, we have a wealth of benefits experience through our Practice Group. Third, our national presence and contacts allow efficient handling of multi-plaintiff and multi-district litigation.

Benefits and Tax Agency Controversy

Our Practice Group defends employers, plan sponsors and employee benefit plans in examinations, summons proceedings, and adversary proceedings initiated under internal agency procedures by federal or state agencies and courts of specialized jurisdiction.

  • We work with clients in disputes involving penalties under the Internal Revenue Code and ERISA relating to fiduciary failures, disclosure and reporting failures, and tax-shelters before the Internal Revenue Service, Employee Benefit Security Administration, and Office of Inspector General.
  • We represent clients in deficiency and refund suits before the U.S. Tax Court, U.S. District Courts, the U.S. Court of Claims and the U.S. Court of Appeals for the Federal Circuit.

Matters in which we represent clients before the Internal Revenue Service include:

  • Examinations opened in connection with payroll tax, executive compensation arrangements and plan audits, including matters relating to annuity funded defined benefit plans under section 412(i) of the Internal Revenue Code, self-funded health plans governed by section 105(h) of the Internal Revenue Code and funded welfare plans under section 419 of the Internal Revenue Code.
  • Matters pending before the IRS Office of Appeals regarding the above matters.

Matters in which we represent clients before the Department of Labor, Employee Benefit Security Administration include:

  • Prohibited transaction penalty proceedings under section 502(i) of ERISA.
  • Proceedings for civil penalties for violations by plan fiduciaries under section 502(l) of ERISA.
  • Defense of agency investigations.

Matters in which we represent clients before state departments of insurance include:

  • MEWA filing and licensing requirements.
  • MEWA investigation and compliance enforcement.

Workplace Privacy

Some of the most sensitive and private information about an individual from health to financial data is held by the individual’s employer. That fact coupled with the increasing use of electronic communication, recordkeeping and surveillance tools has led to increased regulation seeking to balance the employer’s need to use or disclose this information with an employee’s interest in keeping it private.

Jackson Lewis offers an inter-disciplinary group of lawyers that focuses on assisting employers in achieving this balance. More specifically, the Practice Group counsels employers with regard to the complex national and international issues of workplace privacy including:

  • Use of private information in the hiring, disciplinary and termination process
  • Monitoring of employee communications and activities through electronic and video monitoring
  • Employee access to information
  • Handling of employee social security numbers and credit information
  • Data breach notification
  • Compliance and complaint resolution with regard to the privacy and security regulations under the Health Insurance Portability and Accountability Act (HIPAA)
  • Drug and alcohol testing information
  • ADA , FMLA and NLRA privacy requirements
  • Prevention of cybersmearing and blogging
  • Polygraph and lie detection
  • International privacy standards

The Practice Group offers clients creative solutions to achieving the difficult balance between the employer’s need for certain information and the employee’s desire to keep that information private. We work closely with clients to:

  • Develop workplace privacy policies and procedures;
  • Train managers on whether and to what extent certain information may be used or disclosed; and
  • Guide employers through disputes regarding the use or disclosure of privacy information.