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Welcome to the Snell & Wilmer Benefits Blog. We will be posting about current employee benefits and executive compensation topics and issues. We invite you to contact the authors with your thoughts or questions.Blog Contributors
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Enjoy the End of the Decade with Some Employee Benefit Plan Checklists
Each year, we publish health and welfare, cost-of-living, qualified retirement plan, and executive compensation plan checklists to help individuals and employers stay apprised of updates to the law of employee benefits. We just published the last of these annual checklists. In case you missed them, the links are below.
Happy Holidays!
2019 End of Year Plan Sponsor “To Do” List (Part 1) Health & Welfare
2019 End of Year Plan Sponsor “To Do” List (Part 2) Annual Cost of Living Adjustments
2019 End of Year Plan Sponsor “To Do” List (Part 3) Qualified Retirement Plans
2019 End of Year Plan Sponsor “To Do” List (Part 4) Executive Compensation
Posted in Employee Benefits, Executive Compensation, Health & Welfare Plans, Health Care Reform, Qualified Retirement Plans
| Tagged checklists, COLA, cost-of-living, ERISA, Executive Compensation, Internal Revenue Code, qualified retirement plan, to do list
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The Ninth Circuit Reverses Itself and Enforces ERISA Mandatory Arbitration Clause
A three-judge panel of the Ninth Circuit recently decided that Charles Schwab Corp. can require a proposed class action to arbitrate its claim that Schwab breached its fiduciary duties by including Schwab-affiliated investment funds in the Plan, despite the funds’ poor performance, to generate fees for Schwab and its affiliates. In doing so, the Ninth Circuit overturned its former decision in which it held that ERISA claims cannot be arbitrated.
Specifically, the Ninth Circuit panel determined that the Ninth Circuit’s 1984 opinion in Amaro v. Continental Can Co. should no longer be followed because of more recent precedent permitting ERISA claims to be arbitrated, including the U.S. Read More ›
Posted in Employee Benefits, Executive Compensation, Qualified Retirement Plans
| Tagged arbitration, ERISA, Supreme Court
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DOL Finalizes Regulations Requiring Electronic Filing of Top Hat Statements
On June 17th the Department of Labor finalized a set of proposed regulations requiring that all “top hat” plan statements be filed with the Department electronically though this website. As brief background, a “top hat” statement is a one-time filing made with the Department of Labor to protect against a non-qualified plan established for a select group of management or highly compensated employees becoming subject to some of the more onerous requirements of ERISA. Accordingly, to maintain this protection, effective August 16, 2019, “top hat” filings must be made electronically.
The Department introduced the proposed regulations on the electronic filings in September 2014 and has indicated that since the release of the proposed regulations 54% of the “top hat” filings received have been made electronically. Read More ›
Posted in Executive Compensation
| Tagged DOL, ERISA, non-qualified plan, top hat statement
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Director Compensation Update
I’ve written a number of articles and blogs about some sticky issues that can surface in the context of setting pay for public company non-employee directors (here, here, here, and here).
On March 6th the parties to the In re Investors Bancorp, Inc. Stockholder Litigation, filed a settlement agreement with the Delaware Chancery Court. By way of background, the Investors Bancorp decision limited the shareholder ratification defense for non-employee director equity awards that were granted on a discretionary basis. The equity plan at issue in In re Investors Bancorp, which had been approved by the company’s shareholders, provided that the maximum number of shares that could be delivered to all non-employee directors, in the aggregate, would be capped at 30% of all option or restricted stock unit or restricted stock awards available for grant under the plan. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged business judgment rule, director equity awards, equity awards, Executive Compensation, Investors Bancorp
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Certain Information Statements for ISOs and ESPPs Due by January 31, 2019
As reported in Part 4 of our 2018 End of Year Plan Sponsor “To Do” List, Section 6039 of the Code requires employers to provide a written information statement to each employee or former employee and file information returns with the IRS regarding: (1) the transfer of stock pursuant to the exercise of an Incentive Stock Option (“ISO”); and (2) the first transfer by the employee or former employee of stock purchased at a discount under an Employee Stock Purchase Plan (“ESPP”). For ISO exercises and ESPP transfers occurring in 2018, the Section 6039 employee information statement requirement is satisfied by providing Form 3921 (for ISOs) and Form 3922 (for ESPPs) to employees no later than January 31, 2019. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged 2019, deadline, Employee Stock Purchase Plan, ESPP, Incentive Stock Option, information returns, ISO, January 31, stock
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New IRS Guidance Throws a Pass to Certain Universities That Pay Coaches Compensation in Excess of $1,000,000
In Notice 2019-09 (“Notice”), the IRS provides relief from the new excise tax to certain colleges and universities that pay their “covered employees” more than $1 million per year or pay excess parachute payments. Specifically, the Notice provides that the new excise tax under Code Section 4960 does not apply to a governmental entity (including a state college or university) that is not tax-exempt under Code Section 501(a) and does not exclude income under Code Section 115(l). Therefore, those state universities that do not rely on either of these statutory exemptions from income are not subject to Code Section 4960 even if they pay their coaches (or other covered employees) more than $1 million. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged Code Section 4960, limit, notice 2019-09, parachute, tax-exempt, tax-exempt organizations
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The 162(m) Transition Rule Guidance Has Arrived
On August 21, 2018, the IRS released Notice 2018-68 providing its initial guidance on the Tax Cuts and Jobs Act (Act) transition rule for changes under 162(m). Before the Act, 162(m) limited a public company’s tax deduction to $1,000,000 for annual compensation paid to its “covered employees” (i.e., the CEO and the other three most highly compensated executives (excluding the CFO)). Important pre-Act limitations/exceptions to this rule included (i) a more narrow definition of covered employee, and (ii) an exclusion for performance-based compensation.
The Act substantially broadened the definition of covered employee and eliminated the performance-based compensation exception. However, the Act offered a transition rule for compensation paid under a written binding contract that was in effect on November 2, 2017 and that is not materially modified after that date. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged 162(m), covered employee, Material Modification, notice 2018-68, tax cuts and jobs act, transition rule, written binding contract
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Settlement of Solak v. Barrett May Provide Additional Guidance on Setting Director Pay
I’ve stressed how important it is for public company executives and directors to stay apprised of developments in the director pay area, including developments/settlements of director pay lawsuits. Earlier this summer, the Delaware Chancery court approved a settlement of Solak v. Barrett, a case in which the plaintiffs alleged that the directors of Clovis Oncology breached their fiduciary duties by adopting a compensation plan that overcompensated themselves, in relation to companies of comparable market capitalization and size. In their complaint, the plaintiffs cited as evidence, the fact that the non-employee directors of Clovis each had been paid an average of $429,163 annually between 2012 and 2016, while Fortune 50 companies pay their directors a median total of $281,667 a year and S&P 500 companies pay an average $277,237 a year. Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged award, Clovis, compensation, director, settlement, shareholder
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Yet Another Reason to Focus on Director Pay
We have previously encouraged our readers to focus on the size of their director pay packages and the processes their boards undertake in setting director compensation. Prior focus on these issues was recommended largely as a way to mitigate the risk of litigation for excessive pay. In their current U.S. Compensation Policies FAQ, Institutional Shareholder Services Inc. (“ISS”) has given boards yet another reason to focus on director compensation. In the FAQ, ISS indicates the following:
- In evaluating non-employee director pay, ISS will look for “reasonable practices” that “adequately align the interests of directors to those of shareholders.”
- A director pay program should incorporate “meaningful” stock ownership and/or holding requirements.
Posted in Executive Compensation
| Tagged compensation, director, director pay, Institutional Shareholder Services, ISS
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Short-Term Deferral Day is Right Around the Corner
Section 409A, the provision of the Internal Revenue Code that regulates the time and form of payment of nonqualified deferred compensation, contains a helpful exception for “short-term deferrals.” Specifically, Section 409A provides that a payment will not be considered nonqualified deferred compensation if the employer makes the payment on or prior to the 15th day of the third month following the end of the employee’s (or, if later, the employer’s) taxable year in which the employee’s right to the payment vests. For individuals and for employers with calendar fiscal years, the key date for purposes of the short-term deferral exception is March 15th (a little less than two weeks from today). Read More ›
Posted in Employee Benefits, Executive Compensation
| Tagged 409A, deferral exception, March 15, Section 409A, short-term deferral
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