Day Pitney LLP

Employee Benefits and Executive Compensation


Our Employee Benefits and Executive Compensation practice group includes attorneys who offer sophisticated planning, consulting and litigation capabilities with respect to issues that arise under the Internal Revenue Code, ERISA and federal and state securities laws affecting pension and welfare benefit plans and executive compensation programs. We bring to our clients a powerful combination of technical and practical experience, built upon technical skill honed through our focus on the myriad tax, labor and securities aspects of this highly regulated area, and the practical knowledge we have developed over three decades of counseling clients in this rapidly changing area.

Our clients include corporations, both publicly and privately owned, as well as financial institutions, trust companies, trade associations, investment managers, tax-exempt organizations and municipal and other governmental entities, including school districts. For them, we handle all aspects of qualified plan work, including the design, submission, implementation, merger and partial and full termination of all types of pension plans and related participant communications. We advise on matters relating to ESOPs, cash balance plans, multiple employer plans and multiemployer plan issues. In addition, we regularly handle employee benefits issues arising in connection with corporate acquisitions and dispositions, including negotiation and implementation of those matters.

The competition for executive talent is fierce, and we are able to give our clients an edge by helping them structure and implement executive compensation plans. For example, we design, draft and consult with respect to restricted stock plans and other equity compensation schemes, working closely with our Corporate and Business Law department to keep clients advised of changes in the securities laws that may affect benefit plans, such as Sarbanes-Oxley, changes in executive compensation disclosure rules, Section 409A compliance and Section 280G issues. We also help our clients choose and establish non-equity-based supplemental retirement plans. We help our clients integrate change-in-control agreements and employment agreements for executives with their underlying benefit plans.

Sophisticated fiduciaries rely upon our experience, including investment advisors for mutual funds, pooled group trusts and other investment vehicles regarding their fiduciary obligations under ERISA, compliance with ERISA's reporting and disclosure rules and applicability of the plan asset regulations. Our institutional clients also rely on us to help them develop master forms, communication pieces and products for use by their clients.

Fiduciaries of employee benefit plans rely upon our counsel regarding their fiduciary duties and ERISA reporting and disclosure obligations. Additionally, we routinely negotiate investment management agreements and limited partnership agreements with respect to our fiduciary clients' investment of plan assets and advise them on unrelated business taxable income issues.

On the welfare side, we design early retirement windows and severance plans to effect reduction-in-force programs. We provide advice regarding flexible benefit plan design, medical plan design issues, administrative services-only arrangements, and COBRA and HIPAA compliance. We partner with our clients and their vendors to review their group health plans and develop HIPAA compliance plans, including privacy and security procedures, plan amendments, and business associate agreements.

Representative Matters

Specific work by the Employee Benefits and Executive Compensation practice group includes the following:

  • We are outside ERISA counsel to several Fortune 100 companies and provide assistance in all employee benefit-related matters, including merger and acquisition activity, union negotiations, design and implementation of benefit plans, plan communication, third-party vendor negotiation and litigation.
  • We serve as merger and acquisition counsel for several clients with respect to benefits issues, both domestically and internationally. In connection with this representation, we negotiate benefits, engage in due diligence and advise clients regarding partial terminations, distributions, ERISA 204(h) notice requirements, plan mergers, multiemployer liability and amendment issues stemming from the transactions, as well as coordinate benefits review by international local counsel.
  • On behalf of various new entities created through spinoffs, the Employee Benefits and Executive Compensation practice group helped design and implement a full range of welfare and pension plans for these companies' thousands of employees. In connection with such projects, we negotiated with third-party providers and were involved in all phases of employee communications, including internal announcements, summary plan descriptions and preparation of administrative forms and guidelines.
  • We assist several publicly traded retailers in analyzing the impact of federal securities laws upon their participant-directed 401(k) plans, as well as their equity-based compensation plans, including incentive and nonqualified stock options, stock appreciation rights, restricted stock grants and restricted stock unit grants.
  • We have successfully negotiated numerous settlements with the Internal Revenue Service under its Employee Plans Compliance Resolution System using the Voluntary Correction Programs for operational defects and document defects under qualified plans including failure to correctly perform Section 401(k) and 401(m) discrimination tests, failure to obtain spousal consent to distributions, improper distributions, miscalculation of benefit accrual service, exclusion of eligible employees, failure to provide suspension of benefit notices and failure to timely amend plan documents.
  • We have represented clients in connection with both Internal Revenue Service and Department of Labor audits of their benefit plans and negotiated corrections of operational violations with the IRS under its Audit CAP program.