Employer-side counsel on retirement and health plan design, fiduciary governance, and plan compliance, so a benefits program recruits and retains, and holds up when the Department of Labor, the IRS, or a buyer's diligence team looks at it.
Employee deferrals become plan assets on the earliest date they can reasonably be segregated from the employer's assets; for a plan under one hundred participants, the Department of Labor's safe harbor is seven business days. Miss it and the employer has used plan money, a prohibited transaction corrected with lost earnings and an excise tax. Most ERISA exposure looks like that: an administrative habit that is also a fiduciary breach.
ERISA sets the floor for most private-sector retirement and welfare plans: a written plan document, a summary plan description within ninety days of a participant's entry, and a duty of prudence judged by process. The Internal Revenue Code adds qualification and nondiscrimination testing, and the health-plan statutes their own reporting and continuation rules. Each regime has its own filing calendar, and none sends a reminder.
We act for the employer on plan design and documents, on the committee charter and minutes that make prudence provable, and on correction filings when operation drifts from the document. In a sale we run the benefits workstream, and we have represented clients in matters before the IRS and the Department of Labor.
Design, documentation, and ongoing operation of qualified retirement plans, including 401(k), profit-sharing, defined-benefit, and cash-balance arrangements, drafted to meet the Internal Revenue Code's qualification rules and ERISA's reporting and disclosure standards.
Group health and welfare arrangements drafted to the overlapping rules that govern them, the Affordable Care Act, COBRA, HIPAA, and the reporting obligations that attach to each, so coverage stays competitive and compliant at once.
Committee structure, delegation, investment policy, and the documented prudent process that ERISA's duty of loyalty and prudence demands, arranged so plan decisions are defensible and fiduciary liability is contained before it forms.
Compliance review and the correction of plan defects through the IRS and Department of Labor voluntary programs, assessing the failure, determining the correction path, and preparing the filing before a problem is found on audit.
Buy-side and sell-side benefits diligence on unfunded pension liability, plan-document and operational defects, and controlled-group obligations, with plan mergers, terminations, and transitions structured so the exposure stays out of the deal.
Nonqualified deferred compensation and supplemental executive plans drafted to Section 409A's timing rules, coordinated with our executive compensation practice so the commercial goal is met without triggering the penalty that falls on the executive.
ERISA Section 409 makes a fiduciary personally liable to restore losses from a breach, and Section 405 extends that liability to a co-fiduciary who knew and did nothing. The test is process: a committee that benchmarked fees, read the reports, and recorded its reasons has a defense; one without minutes does not.
COBRA reaches employers with twenty employees, the Affordable Care Act's employer mandate starts at fifty full-time equivalents, and a retirement plan needs an annual audit at one hundred participants with account balances. No statute announces that an employer has grown into it; the first notice is usually a penalty letter.
Operational and document failures are common, and the IRS and Department of Labor run voluntary correction programs that resolve many of them on favorable terms, but only if the employer acts before an audit finds the problem.
In M&A, plan liability becomes price. Unfunded pension obligations, qualification defects, and controlled-group exposure surface in diligence; mapping them early keeps them out of the purchase agreement and the post-closing dispute.
A plan runs on its written terms, and since CIGNA v. Amara the summary plan description cannot supply terms the document lacks; a generous SPD creates an equitable claim, not a benefit. The common failures are operational: a payroll definition of compensation that differs from the plan's, or an eligibility date applied a quarter late.
Elections are made before the service year, payment follows only the events the statute lists, and a specified employee of a public company waits six months after separation for deferred severance. A violation means immediate inclusion plus a twenty percent additional tax, both on the executive, whose counsel reads the plan too.
The plan is designed and documented before a dollar moves. Eligibility, vesting, employer contributions, and the qualified or welfare wrapper that fits the workforce are reduced to a plan document and summary plan description that say exactly what the plan will actually do.
Fiduciary roles are named rather than assumed: a committee is chartered, investment and administrative duties are delegated in writing, service providers are vetted and fee-benchmarked, and a minute-keeping discipline is built so every plan decision leaves a prudent-process record.
The plan is run against its own document, through testing, notices, and annual Form 5500 reporting, and when operation drifts from the terms, the defect is triaged into the IRS and DOL voluntary correction programs before an examiner finds it first.
Eventually the plan is tested from outside, by a buyer's diligence team, an IRS or DOL examination, or a participant claim. The file built in the first three stages carries the response: exposure quantified, plans merged or terminated on schedule, and the fiduciary record produced intact.
A plan is judged on the day it is examined by what was written down every day before.
The Employee Retirement Income Security Act of 1974, the federal statute governing most private-sector benefit plans: 401(k), pension, and profit-sharing plans on the retirement side, and group health, disability, and life coverage on the welfare side. It requires a written plan and summary plan description, annual reporting, and a fiduciary standard of prudence, and it preempts state law for the plans it reaches except state regulation of insurance. It does not reach governmental or church plans, or a plan covering only a business owner and spouse, which is why a solo 401(k) files a different form.
A fiduciary is anyone who exercises discretion over a plan or its assets, and ERISA holds fiduciaries to a strict duty of loyalty and prudence, which means acting solely in the interest of participants. Breach can mean personal liability. We help employers identify who their fiduciaries are, structure committees and delegation, document the prudent process behind plan decisions, and put governance in place that withstands later scrutiny.
Benefit plans carry exposure that becomes part of the deal: unfunded pension liability, plan-document and operational defects, controlled-group obligations, and the treatment of plans at closing. In diligence we map that exposure on the buy-side and the sell-side, and we plan mergers, terminations, and transitions so benefits issues stay out of the purchase agreement and the post-closing dispute.
Plan errors are common, and the IRS and Department of Labor maintain voluntary correction programs that let an employer fix many failures on favorable terms before they are found on audit. We assess the defect, determine the correction path, and prepare the filing, and where a plan is already under examination, we represent the employer in matters before the IRS and the Department of Labor.
Yes, and the health side runs on its own calendar. An employer at fifty full-time equivalents owes the Affordable Care Act's offer of coverage and files Forms 1094-C and 1095-C each year. A group health plan must send COBRA notices on time and continue coverage for eighteen months after most qualifying events, and a self-funded plan is a HIPAA covered entity with privacy and security duties of its own. Since the Consolidated Appropriations Act of 2021, a plan that covers mental health must keep a written comparative analysis of its treatment limitations ready for the Department of Labor and attest each December that its contracts contain no gag clauses.
Nonqualified deferred compensation is governed primarily by Section 409A of the Internal Revenue Code, whose timing and election rules are unforgiving and whose penalties fall on the executive. We coordinate with our executive compensation practice to design deferral, equity, and incentive arrangements that achieve the commercial goal while staying inside 409A and the related tax and benefits rules.
Executive agreements, equity and incentive design, restrictive covenants, and severance, structured to recruit and retain leadership while keeping the plan enforceable when it is tested.
Explore →Employment and hiring policy developed in strict compliance with federal and state standards on wages, leave, accommodation, and conduct, drafted so practice and policy actually match.
Explore →Buy-side and sell-side employment diligence covering successor liability, classification and wage-and-hour review, change-in-control and retention terms, and the workforce integration that follows close.
Explore →Employment disputes handled through arbitration, mediation, and litigation when required, with the early posture and paper trail that tend to resolve a matter on the employer's terms.
Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
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