In Case You Missed It – Winter 2023

Written by members of Faegre Drinker’s benefits and executive compensation team, this blog features analysis and information on matters related to retirement plans, health and welfare plans, ESOPs, ERISA litigation, fiduciary governance, and other benefits issues.

This quarterly digest provides links to our most popular posts during the past few months so that you can catch up on what you missed or re-read them.

Secure 2.0 Adds New Distribution Options for Defined Contribution Plans

By Mark Rosenfeld, Erik Vogt, and Mark M. Brown
SECURE 2.0 introduced several new distribution options and tax reporting rules for defined contribution plan sponsors. In this post, we overview the new provisions and their potential implementation dates.

COVID-19 National Emergency Plan Deadline Extensions Set to End This Summer

By Stephanie L. Gutwein and James E. Crossen
On January 30, 2023, President Biden announced the Administration’s plan to extend the current declarations of the COVID-19 national emergency and public health emergency (PHE) through May 11, 2023, and end both emergencies on that date. The end of the national emergency, which was originally declared in March 2020, will cause certain employee benefit plan-related deadline extensions to conclude this summer.

Multiemployer Pension Plan Alert: Evergreen Clauses May Trump the Bargaining Parties’ Subsequent Agreement

By Gregory Ossi and Caitlin M. Britos
The U.S. Court of Appeals for the Seventh Circuit recently ruled that Central States, Southeast and Southwest Areas Pension Fund may continue its lawsuit against Transervice Logistics, Inc. and Zenith Logistics, Inc. seeking allegedly outstanding pension fund contributions. The case examined two consolidated appeals, each involving a nearly identical collective bargaining agreement (CBA) between each employer and a union, and trust agreements between each employer and the plaintiff fund.

Fourth Circuit Endorses Rule 52 for Resolving ERISA Benefit Claim Cases with Factual Disputes

This article originally appeared in the March 2023 edition of The Brief Case, DRI’s monthly newsletter.

Amid a circuit split, the U.S. Court of Appeals for the Fourth Circuit (Fourth Circuit) has firmly taken a side as to its treatment of benefit claim denials brought under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B). In Tekmen v. Reliance Standard Life Insurance Company, 55 F.4th 951 (4th Cir. 2022), the Fourth Circuit endorsed seeking judgment, not via summary judgment or a quasi-summary judgment procedure, but through Federal Rule of Civil Procedure 52 if the case involves de novo review of a benefit claim with factual disputes. Rule 52 allows a court to conduct a “trial on the papers” and thus issue findings of fact and conclusions of law.

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NLRB: Severance Pay Cannot Include Condition to Waive Rights Under NLRA

The decision of the National Labor Relations Board (the Board) in McLaren Macomb, 372 NLRB No. 58 ( Feb. 21, 2023), reinstates a limit on the confidentiality, non-disclosure, and non-disparagement clauses that employers may include in severance agreements with most of their lower-level employees. While the Board bills its decision as a return to the standard applied in earlier cases, this decision suggests that the Board will take a broader view of how such agreements infringe on employees’ rights under Section 7 of the National Labor Relations Act.

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