The widely publicized case of Sun Capital Partners III, L.P. v. New England Teamsters & Trucking Ind. Pension Fund, No. 12-2312, __ F.3d __, 2013 WL 3814984 (1st Cir. July 24, 2013), has made the private equity investment community a touch uneasy. In holding that a fund organized by Sun Capital Advisors, Inc. ("Sun Capital") was subject to a withdrawal liability assessment as “trade or business” under the Multiemployer Pension Plan Amendments Act ("MPPAA"), the First Circuit clearly created a new area of risk for private equity firms. But the Sun Capital case could also have broader implications for the way corporate organizations can be characterized for employee benefits purposes.
Entries in Plan Administration (43)
Today the United States Supreme Court overturned Section 3 of the Defense of Marriage Act (“DOMA”) and reinstated a California judge’s order that Proposition 8 (the California ballot initiative defining marriage as between a man and a woman) is unconstitutional. Although it will take time to sort through the implications of these rulings (which depend somewhat on how they are interpreted by the federal government and individual states), they undoubtedly will have a substantial impact on employer-sponsored benefit plans.
What the Rulings Do
Section 3 of DOMA defines the words “marriage” and “spouse,” for federal purposes, as referring only to marriages between opposite-sex couples. As a result of DOMA, the legal marriages of same-sex couples were not recognized under any federal law, including the Internal Revenue Code and ERISA. This treatment of same-sex spouses as unmarried individuals had far reaching implications in the context of employee benefits and federal income taxation.
As a result of today’s ruling in United States v. Windsor, any federal statute that refers to a “marriage” or a “spouse” must be interpreted as applying with equal force to same-sex married couples, and same-sex couples who are legally married must now be treated the same under federal law as opposite-sex married couples. It is certain these changes apply to same-sex married couples who live in states that recognize same-sex marriage; it remains to be seen how they will apply to same-sex married couples who come to live in states that do not recognize such marriages.
There will be significant ramifications for employer-sponsored benefit plans in states where same-sex marriages are affected by the ruling:
Summer is fast approaching and we find ourselves answering a number of questions regarding the coverage of seasonal workers in employee benefit plans. For employers planning to ramp up hiring for the summer season we offer this brief review of the treatment of seasonal employees for purposes of your employee benefit plans, with emphasis on issues under the Affordable Care Act.
It’s no secret that the Office of Civil Rights of the Department of Health and Human Services has been expanding its enforcement activity under the privacy and security standards of HIPAA. And it’s not surprising that enforcement activity is in the offing under the Affordable Care Act as well, and at more than one federal agency. But be advised that the Department of Labor appears to be pursuing its own robust approach to group health plan examinations, covering the HIPAA portability requirements, wellness programs, and Affordable Care Act compliance.
Here is a copy of the document request that one of our clients recently received to kick off a DOL examination that will include an on-site visit. Note that the HIPAA-related items focus on the portability and discrimination aspects of HIPAA, with questions about special enrollment rights, Certificates of Creditable Coverage, the provision of required notices, and the like. The DOL has also requested materials regarding wellness programs to assess compliance with the wellness program requirements of the HIPAA regulations (particularly as they relate to standards-based programs). The Affordable Care Act questions focus on documents that would be relevant to establish and support grandfathered status, the provision of certain mandated benefits, and related notices and disclosures. Although not specified in the document request, the time frame under review generally is 2010 through 2012 (except as otherwise noted).
In the audit context, an employer that adheres to sound documentation and recordkeeping practices will be rewarded, and a timely and comprehensive response to the pre-examination document request is the best way to start an audit going in the right direction. In this case, the documents requested by the DOL should be relatively easy to produce from internal records or obtain from third party administrators (or other consultants). For that reason, a failure to provide any of these documents (to the extent applicable to the subject plan) could be taken by a DOL investigator as an indication of an employer’s poor compliance status.
On the theory that to be forewarned is to be forearmed, we commend the attached list to your attention.
Nearly 20 years after the IRS first established a limited program for the correction of 403(b) plan administrative errors, 403(b) plans have finally been placed on equal footing with qualified plans with respect to the correction of operational, documentary, and demographic failures under the Employee Plans Compliance Resolution System (EPCRS). The expanded scope of 403(b) plan corrections made possible by Revenue Procedure 2013-12 comes as welcome news for tax-exempt and governmental employers and their advisors. The updated version of EPCRS officially takes effect April 1, 2013, but the guidance permits employers to rely on the 403(b) correction provisions beginning January 1, 2013.