Should the recently leaked SCOTUS draft opinion overturning Roe v. Wade become law this summer, trigger laws across the Country will go into effect, illegalizing abortion in a significant number of states. Other states are exploring implementing new restrictions on abortion, contraceptive and prenatal services. Many clients have already asked us about what options they may have available to them to support and assist their employees who live in those states. What can employers do if services provided under the terms of their health plan are not available to participants depending on where the participant lives? Can health plans cover expenses related to out of state travel for obtaining abortion services? Grab your cup of coffee and tune in to hear Richard and Sarah chat with Diane Dygert and Ben Conley, who are both Partners in Seyfarth’s Employee Benefits and Executive Compensation department, about these timely questions and more.

Click here to listen to the full episode.

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Seyfarth Synopsis: The IRS has announced increases to key limits for certain health and welfare benefit programs, including HSA contributions for 2023.

The Internal Revenue Service (IRS) recently released 2023 cost-of-living adjustments applicable to dollar limitations for employer-sponsored health and welfare plans.

The changes in the 2023 cost-of-living adjustments for employer-sponsored health and welfare plans are summarized in the table below:

Health and Welfare Program Limits (Rev. Proc. 2022-24)
2022
2023
Change
Health Savings Account (HSA) Annual Contribution Limit

  • Self-only Coverage
  • Family Coverage

 

$3,650

$7,300

 

$3,850

$7,750

 

+$200

+$450

High Deductible Health Plan (HDHP) Minimum Annual Deductible

  • Self-only Coverage
  • Family Coverage

 

$1,400

$2,800

 

$1,500

$3,000

 

+$100

+$200

HDHP Maximum Annual Out-of-pocket Limit (Deductibles, Co-payments and Other Amounts, but not Premiums)

  • Self-only Coverage
  • Family Coverage

 

 

$7,050

$14,100

 

 

$7,500

$15,000

 

 

+$450

+$900

Maximum Amount that May Be Made Newly Available for an Excepted-Benefit Health Reimbursement Arrangements (EBHRA) $1,800 $1,950 +$150

Employers who sponsor health and welfare plans should take advantage of the new increased limits by making adjustments to plan administrative/operational procedures.

Seyfarth Synopsis: The ever evolving landscape of environmental, social and governance (ESG) factors and 401(k) plan investment options may have just become even more complicated.

As we’ve covered on our blog over the last few years, the DOL’s guidance on whether environmental, social and governance (ESG) investments are an appropriate investment for ERISA plans has changed significantly. (See our prior blog posts here, here, and here for more background on that complicated history.) The Securities and Exchange Commission (“SEC”) has added a new potential twist that could place fiduciaries of retirement plans, like 401(k) plans, and the Board of Directors of companies that sponsor such plans in a very difficult position. Specifically, the SEC recently released correspondence related to its denial of the request from two different companies to exclude from its proxy materials a shareholder’s proposal concerning the investment options under the company’s retirement plan.

To read the full legal update, click here.

Navigating the appropriate handling of a deceased participant’s plan benefit is an all too common concern for retirement administrators.  What’s the big deal? Seems like it should be simple enough — just pay the beneficiary — but in practice it can be a major headache. How do plan administrators ultimately decide who the proper beneficiary is, and who will receive the plan benefit? How do beneficiary designations work in the context of divorce? What if the participant didn’t designate a beneficiary at all? What can employers and plan administrators do to help mitigate common challenges associated with beneficiary designations? Grab your cup of coffee and tune in to hear Richard and Sarah chat with Jennifer Kraft, a Partner in Seyfarth’s Employee Benefits and Executive Compensation department, about these burning questions and more!

To listen to the full episode, click here.

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A federal judge has dismissed a class action lawsuit that challenged the Washington Long-Term Cares Act (“Cares Act”), ruling that because the Cares Act is not established or maintained by an employer and/or employee organization, it is not an employee benefit plan and therefore not governed or preempted by ERISA. The Court also held that the premiums assessed by the Cares Act constitute a state tax.  As such, only state courts, not U.S. federal courts, have jurisdiction to rule on the Cares Act.

Click here to read our Legal Update on the dismissal of the law suit.

We are excited to announce the rollout of Coffee Talk With Benefits, a podcast brought to you by our Employee Benefits & Executive Compensation Department. Each episode will provide brief and lively discussions of questions, issues, and concerns that our EB clients and colleagues encounter on a daily basis or wrestle with from time-to-time. Our conversations will be informed by you, our clients and friends, and reflect the everyday questions asked of us in our role as employee benefits counsel to large and small businesses in a variety of sectors, including retail, manufacturing, technology, health and hospital systems, and higher education, to name a few. In each episode, our hosts, Richard Schwartz and Sarah Touzalin, will interview a guest with expertise in the employee benefits world.

To hear a short trailer for this exciting new Podcast click here. And, if you like what you hear (yes, employee benefits can be amusing, interesting and exciting!), be sure to subscribe to the Podcast so as not to miss an episode!

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Episode 1 – The Impact of Disability on Retirement Plan Participation

One of your employees goes out on disability. What happens to their retirement plan participation while on disability? Is the individual still an employee? Do employee deferrals and loan repayments continue? What about employer contributions? Is the individual eligible to take a distribution while out on disability? So many questions, so little time! Grab your cup of coffee and tune in to hear Richard and Sarah chat with Diane Dygert, Chair of the Seyfarth Employee Benefits and Executive Compensation department about these burning questions, and more!

Click here to tune in for our inaugural episode!

 

 

 

Seyfarth Synopsis: The SECURE Act, passed just before the onset of the COVID-19 pandemic at the end of 2019, significantly altered the retirement plan landscape. For a reminder on how the SECURE Act changed the retirement landscape click here and here. In 2021, another bill, Securing a Strong Retirement Act of 2021, was considered but never passed. See our blog post here. The bill was revised and reconsidered in 2022, renamed the Securing a Strong Retirement Act of 2022 (“SECURE 2.0”), recently passed the House on March 29, 2022, and has been referred to the Senate. SECURE 2.0 builds on the SECURE Act and, if enacted, will require another close review of current retirement plan provisions and administration.

Is SECURE 2.0, as passed by the House, better than the original SECURE Act? Below are some of its provisions so plan sponsors and administrators can decide for themselves.

  • Required Minimum Distributions. The original SECURE Act raised the RMD age from 70-1/2 to age 72 beginning in 2020. Under SECURE 2.0, the RMD age would increase to age 73 in 2023, age 74 in 2030, and age 75 in 2033. Also, excise taxes for certain RMD failures would be reduced.
  • Mandatory Cashout Limit. The mandatory cashout limit, when distributions can be made without a participant’s consent, would increase to $7,000 from $5,000 in 2023.
  • Automatic Enrollment and Escalation in New 401(k) and 403(b) Plans. Newly established 401(k) and 403(b) plans would be required to automatically enroll eligible employees at 3% with automatic increases on and after January 1, 2024. Plans in existence prior to the enactment of SECURE 2.0, along with other limited exceptions, would be exempt from this rule.
  • Catch-Up Contributions. Beginning in 2024, participants at ages 62, 63, and 64, would be able to contribute up to $10,000 (indexed for cost-of-living) as catch-up contributions, an increase from the current limit of $6,500. Additionally, beginning in 2023, all catch-up contributions (other than those made to SEPs or SIMPLE IRAs) must be Roth contributions.
  • Employer Matching Contributions on Student Loan Repayments. Beginning in 2023, 401(k), 403(b), and governmental 457(b) plans would be permitted to match a participant’s student loan payments similar to plan elective deferrals.
  • Long-Term/Part-Time Workers. The original SECURE Act amended the Code to provide that part-time employees who work at least 500 hours each year for three consecutive years must be eligible to make salary deferrals into a 401(k) plan. SECURE 2.0 would amend ERISA to include both 401(k) and 403(b) plans, and change the eligibility requirement to 500 hours in two years. The first group of part-time workers could become eligible for a plan in 2023, not 2024 as is the case under the original SECURE Act.
  • Roth Matching Contributions. For 401(k), 403(b), and governmental 457(b) plans, plan sponsors could permit employees to elect that matching contributions be treated as Roth contributions.
  • Hardship. For hardship withdrawals, plans would be permitted to rely on an employee’s self-certification that the employee has incurred a hardship. Additionally, SECURE Act 2.0 would harmonize the rules for hardship distributions under 403(b) plans with the 401(k) plan rules (e.g., making account earnings under a 403(b) plan available for hardship distributions).
  • 403(b) Investment in Collective Investment Trusts. Investment in Collective Investment Trusts (CITs) is currently permitted in various plans, including 401(k) plans, and is often used as a lower cost investment option for participants. 403(b) plans have historically been prohibited from investing in CITs, but SECURE 2.0 would specifically allow it beginning in 2023.

Other interesting proposals in SECURE 2.0 include permitting employers to offer small financial incentives to encourage participation in 401(k) plans, and penalty-free withdrawals of plan account balances (of up to $10,000) to victims of domestic abuse. Also, while the proposal eliminates the requirement to provide certain annual notices to employees who have not enrolled in an individual account plan as long as they receive an annual reminder notice of plan eligibility, it also adds a requirement to provide paper statements to 401(k) plan participants at least once a year and at least once every three years to pension plan participants. Finally, the proposal notably does not include any provisions about the much talked about elimination of Roth conversions.

As noted, this bill has only been passed by the House. Although there was significant bipartisan support in the House, it is likely that the provisions will be modified as the bill makes its way through the Senate. To stay up to date, be on the lookout for additional Beneficially Yours blog posts and Seyfarth Legal Updates.

Seyfarth Synopsis: Back in 2015, the U.S. Securities and Exchange Commission (“SEC”) issued proposed rules on the pay-for-performance disclosure required under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”). While that proposal generated much commentary at the time, the rules were never finalized. Seemingly to refresh the debate and move things forward, the SEC recently reopened the 30-day comment period for those 2015 proposed rules.

Dodd-Frank was enacted to address financial stability after the 2008 financial crisis by requiring accountability and transparency of SEC registrants.¹ Certain Dodd-Frank provisions required rulemaking by the SEC in order to be implemented. In particular, Section 953(a) of Dodd-Frank (which added Section 14(i) to the Securities Exchange Act of 1934) requires the SEC to adopt rules for requiring registrants’ proxy statements to describe the relationship between the executive compensation actually paid and the financial performance of the company.

2015 Proposal

The reopened comment period relates specifically to the portion of the 2015 proposal related to new disclosure rule Item 402(v) of Regulation S-K. This “2015 Proposal” would require a registrant to describe how the executive compensation actually paid by the registrant relates to the registrant’s financial performance. The 2015 Proposal would require a proxy table providing:

  • the “total compensation” actually paid to the company’s principal executive officer (“PEO”) and, on average, to the company the company’s other named executive officers (“NEO”), as reflected in the Summary Compensation Table;
  • the “compensation actually paid” to the PEO and other NEOs, which is based on the amounts reported as “total compensation,” adjusted to (i) exclude changes in actuarial present value of pension benefits and (ii) take into account the fair value of equity awards at vesting, rather than their grant date fair value;
  • the company’s total shareholder return (“TSR”) over the three most recently completed fiscal years as a measure of its financial performance; and
  • the TSR of the company’s peer group over the three most recently completed fiscal years.

Smaller reporting companies are required to disclose the relationship between executive compensation actually paid and TSR over the registrant’s three most recently completed fiscal years but are not required to disclose the peer group TSR.

2022 Release

The SEC’s stated objective in reopening the comment period to the 2015 Proposal is to determine whether the disclosure of additional performance metrics would provide investors with useful information to evaluate the relationship of executive compensation to a company’s financial performance while preserving comparability. The press release accompanying the Reopening of Comment Period for Pay Versus Performance (the “2022 Release”) includes a statement from SEC Chairman Gensler that “commenters expressed concerns that total shareholder return would provide an incomplete picture of performance.” Accordingly, the SEC is also considering requiring registrants to disclose the following measures of performance to clarify for investors the relationship between executive compensation and financial performance:

  • Disclosures in tabular form of the registrant’s pre-tax net income, net income and a measure chosen by the company to measure its financial performance;
  • In a format of the registrant’s choice (e.g., a graph or narrative text), a clear description of the relationship among the measures provided in tabular form (e.g., the three new measures proposed); and/or
  • A list of the registrant’s five most important measures used to link compensation actually paid during the fiscal year to company performance, in order of importance.

In connection with reopening the comment period, the SEC Commissioners stated that “financial incentives are a key motivator to drive performance of executives in their role as fiduciaries to companies and shareholders,” and “understanding what those incentives are and whether they are working and how they link to the company’s performance is important to investors in evaluating the company’s compensation practices.” In addition, one Commissioner specifically noted that companies are increasingly linking executive pay to environmental, social and governance (“ESG”) measures to advance their ESG goals and improve performance, including through ESG-related performance measures. (See Seyfarth’s thought piece on this topic here.) More broadly, citing to the growing gap between pay for executives and for everyday workers, one Commissioner stressed that “investors need to know if the growth in executive compensation has also resulted in value creation.” The Commissioners requested feedback from commenters on how flexibility in the rule could provide companies and investors with better information to evaluate these types of customized incentive pay arrangements with the performance of the company.

While the 2022 Release would add content requirements to proposed disclosures that certain commenters have already characterized as onerous, it would also provide companies with greater ability to document how value is created for its shareholders with effective incentive policies. Specifically, the 2022 Release would allow companies to use a customized alternative performance metric to demonstrate how their uniquely designed incentive programs contribute to the company’s financial performance. Customized performance measures could be designed with industry specific variations in mind including addressing sustainability or other ESG features. For example, progress towards certain industry-specific ESG standards (e.g., as identified by the Sustainable Accounting Standards Board) could be incorporated into a company’s performance metric.

Finally, note that the SEC does not appear to be unified in the quest to issue a final rule under Dodd-Frank Section 953(a). One SEC Commissioner stated his disagreement with the need for additional disclosure requirements, opining that such disclosure would be burdensome to public companies, questioning its utility to investors, and suggesting that the 2022 Release exceeded the statutory mandate of Section 953(a).

The new 30-day comment period ended on March 4, 2022. We are hopeful that this means that a final rule will be issued some time in 2022.

If you have any questions on the SEC’s proposed pay-for-performance rules, please contact your Seyfarth executive compensation specialist.


  1. Generally, an “SEC registrant” includes, but is not limited to, an “issuer” of a security required to make a filing under the Securities Act of 1933, the Securities Exchange Act of 1934, and a registrant that files periodic reports under the Securities Exchange Act of 1934 or the Investment Company Act of 1940. This includes companies trading on a U.S. exchange.

Seyfarth Synopsis: In keeping with their recent more vocal stance on fiduciary duties, the Department of Labor has weighed in on the wisdom of 401(k) plans including an ESG fund or a crypto investment option in its line-up. And, it’s complicated.

As we’ve covered in this space, over the last few years the DOL has opined on the type of investment that would be appropriate for a fiduciary to include in a 401(k) plan’s line-up. For example, the DOL’s thinking on whether an ESG-focused investment is appropriate has evolved over this time period, from a hostile outlook to one that acknowledges that ESG factors may be pecuniary in nature, requiring an evaluation of those factors. [See our prior posts here and here for more background on that complicated history.] In fact, following their newly announced attitude toward ESG funds, in February the DOL’s EBSA issued a Request for Information to solicit input on how retirement savings could be impacted by “climate-related financial risk” and what actions the EBSA should be doing in that regard. The RFI focused on whether the EBSA should be collecting data on plans’ climate-related financial risk and whether the Form 5500 should be used for this task. This latest issuance from the DOL seems to mark a full about face on their ESG views, from one which almost forbids its consideration to one which mandates it.

One might have thought that following the DOL’s more open attitude toward ESG-focused investment options in 401(k) plans, they would be content to just let the prudent fiduciary standards generally apply to selection of investment options. That turns out not to be the case. The DOL has just issued a Compliance Assistance Release on 401(k) investments in crypto-currencies, including a wide range of digital assets. Contrary to their ESG views, in this case, the DOL expressly warns fiduciaries about including such an offering or risk personal liability. They cite such concerns as the speculative and volatile nature of, and the valuation concerns with, cryptocurrency, the difficulty in recordkeeping and custodying such assets, as well as the evolving regulatory environment. The agency also notes that not all 401(k) participants are sophisticated investors and evaluating whether they should invest their retirement savings in crypto would be extraordinarily difficult for them. Participants may surmise that because such a fund is offered in their plan, means it is an appropriate and prudent option for their own retirement savings.

The DOL leaves us with an ominous warning that it will conduct a program to investigate plans that offer investments in cryptocurrencies and related products to take “appropriate action to protect the interests of plan participants and beneficiaries.”

On Tuesday, March 22, 2022, 9:00 am to 5:00 pm ET, Seyfarth partner Linda J. Haynes will participate in the Practicing Law Institute (PLI) one-day program, “ERISA Plan Investments in the Financial Markets 2022: The Fundamentals.” Linda is a Co-Chair of the program and will present as part of the “ERISA Enacted in 1974 – The Initial Transition to the New Rules and Application to the Financial Community” panel.

Open to all practitioners in the field (or those who are considering entering the field), this program will provide an in-depth look at the nuts and bolts of various financial instruments and investment vehicles, and the ERISA issues that arise in connection with them. By focusing on different plan investments, each panel will explore the interaction between ERISA and how financial products and markets actually work. This event will be available as a live webcast.

Find more information and register for this program at www.pli.edu.