A Trump Presidency: What Does It Mean for Employee Benefits?
(Posted on November 29, 2016 by )


White HouseBased on both campaign promises and Donald Trump’s plans for his first 100 days, a Trump presidency is likely to make major changes in employee benefits law. The most significant ones are likely to be:

  1. Major changes in the Affordable Care Act (although the timing and extent of such changes are unclear), combined with expansion of health savings accounts.
  2. Postponement or elimination of the recently issued Department of Labor fiduciary regulations.
  3. Loosening of executive compensation rules.
  4. Further cutbacks in IRS guidance and audit activity.
  5. Increased hostility to consideration of noneconomic factors in selecting retirement plan investments.
  6. Diminished enforcement of protections for LGBT employees.
  7. Increased activity at the state level, including establishment of state-sponsored retirement plans for private employers.

These issues, and others of less general concern, are discussed below. Read more.

Family & Medical Leave Act regulations protect same-sex spouses, regardless of domicile
(Posted on February 23, 2015 by )


deptlaborImmediately after the Supreme Court’s decision in United States v. Windsor, the Department of Labor announced that for purposes of the spousal protections of the Family and Medical Leave Act of 1993 (FMLA), it would recognize a same-sex marriage only if it was legal in the jurisdiction of the couple’s domicile. It has now reversed that position, issuing final regulations which recognize a marriage a) within the United States, if it was valid in the state in which it took place, and b) outside of the United States, if it was valid in the jurisdiction in which it took place and if it could have been entered into in at least one state. The effective date for the final rule was March 27, 2015.

Update (June 26, 2015): This rule is in line with the Supreme Court decision in Obergefell v. Hodges, which has now recognized same-sex marriages nationwide.

If You Like Your Insurance, You Can Keep Your Insurance… At Least For Another Year
(Posted on November 14, 2013 by )


HealthInsuranceIn the wake of negative publicity about individuals and small businesses losing their existing health insurance due to the Affordable Care Act, the Department of Health & Human Services, in consultation with the Treasury Department and the Department of Labor, has provided transitional relief. The transitional relief applies only if certain conditions are met, as follows:

Read more

Department of Labor Announces That Same-Sex Marriages Will Be Recognized For ERISA Purposes, Regardless of the Laws of the Employer’s or Employee’s State
(Posted on September 18, 2013 by )


deptlaborThe Department of Labor has now issued Technical Release No. 2013-04 (September 18, 2013), in which it announces that for purposes of Title 1 of the Employee Retirement Income Security Act of 1974 (“ERISA”), the term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law. (The latter provision is apparently necessary to deal with marriages that are performed abroad.) Civil unions and domestic partnerships will not, however, be treated as marriages. This corresponds with the position earlier taken by the IRS.

The announcement applies only for purposes of ERISA, however. Face Sheet 28F indicates that the Department of Labor will treat a party to same-sex marriage as a spouse for purposes of the Family & Medical Leave Act only if the state where the employee resides recognizes the marriage.

Who is a spouse? Different federal agencies take differing approaches after Windsor
(Posted on August 13, 2013 by )


gay_marriageSince the publication of this article, Treasury and the IRS have announced that any legal same-sex marriage will be recognized for federal tax purposes, regardless of whether the couple’s home state recognizes the marriage. See this post. The Department of Labor has also issued final regulations under the Family & Medical Leave Act which recognize a marriage, regardless of the couple’s domicile, if a) it occurred within the United States, and it was valid in the state in which it took place, and b) it occurred outside of the United States, if it was valid in the jurisdiction in which it took place and it could have been entered into in at least one state.

Federal law requires that employer plans determine marital status in a variety of contexts, ranging from requirements that ERISA-covered retirement plans provide spousal death benefits (e.g., a qualified joint and survivor annuity, qualified preretirement survivor annuity, or payment of the participant’s account balance to the spouse) to COBRA (health care continuation) rights in the event of a divorce or separation. In the wake of the Supreme Court’s decision in United States v. Windsor, it is clear that a same-sex married couple must be treated the same as an opposite-sex married couple for these purposes. But when will a same-sex couple be treated as married? Weeks after the Windsor decision, the few federal agencies that have issued guidance have taken wildly disparate approaches.

Read more.