Lowenstein Sandler's Executive Compensation and Employee Benefits Podcast

On this episode of “Just Compensation,” the hosts provide an introduction into Section 409A, the complicated tax code provision that governs non-qualified deferred compensation: when does it apply, how do you comply with it, what are the exceptions, and what are the implications of noncompliance? Speakers: Darren Goodman, Vice Chair, Executive Compensation and Employee Benefits Megan Monson, Partner, Employee Benefits & Executive Compensation Jessica Kriegsfeld, Associate, Executive Compensation and Employee Benefit

On this episode of “Just Compensation,” Darren Goodman, Sophia Mokotoff, and Taryn E. Cannataro discuss equity compensation that can be issued by partnerships, with a special focus on profits interests. Profits interests are very commonly used by partnerships due to their flexibility in structuring and advantageous tax treatment. The lawyers explain the pros and cons of such arrangements. Speakers: Darren Goodman, Vice Chair, Executive Compensation and Employee Benefits Sophia Mokotoff, Partner, Tax Taryn E. Cannataro, Counsel, Executive Compensation and Employee Benefits

Andrew Graw, Taryn Cannataro, and Jessica Kriegsfield of Lowenstein Sandler's Employee Benefits and Executive Compensation Practice Group address multi-employer pension plans in the context of a business transaction, providing listeners with an overview of considerations and areas of potential liability plus tips on how to mitigate these issues. A multi-employer plan is comprised of various unrelated employers who make contributions on behalf of a unionized workforce; these contributions are based on a collective bargaining agreement, so failure to make those contributions or certain types of withdrawals can result in liability for the acquirer or the target. The lawyers advise inquiring about the funding status of the plan, considering the impact of changes in the workforce post-closing, and addressing potential withdrawal liability in the purchase agreement before closing a business transaction when a multi-employer plan is involved. Speakers: Andrew E. Graw, Partner and Chair, Employee Benefits & Executive Compensation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation Jessica Kriegsfeld, Associate, Employee Benefits & Executive Compensation

On the latest episode of “Just Compensation,” Andrew E. Graw, Taryn E. Cannataro, and Jessica I. Kriegsfeld address single-employer defined benefit plans in the context of a business transaction, and the potential liabilities inherent in maintaining the plan post-closing as well prior to the closing— especially in light of how well funded the plan is. They discuss who bears the liability for a defined benefit plan in a transaction, and what an acquirer can do to mitigate the pension liability. Speakers: Andrew E. Graw, Partner and Chair, Employee Benefits & Executive Compensation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation Jessica Kriegsfeld, Associate, Employee Benefits & Executive Compensation

Today on “Just Compensation,” Darren Goodman, Megan Monson, and Taryn E. Cannataro of Lowenstein's Employee Benefits & Executive Compensation group are joined by Sophia Mokotoff, partner in the firm’s Tax group, to discuss Internal Revenue Code Section 457A, a complicated provision of the tax code which regulates deferred compensation from certain non-US entities. The lawyers provide a high level overview of 457A and when it applies, so that companies and individuals know its potential impact. Speakers: Darren Goodman, Vice Chair, Employee Benefits & Executive Compensation Megan Monson, Partner, Employee Benefits & Executive Compensation Sophia Mokotoff, Partner, Tax Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation

In today’s episode of “Just Compensation,” Kate Basmagian, partner in Lowenstein’s Capital Markets & Securities group and chair of the firm's ESG group; Christine Osvald-Mruz, partner in the Employee Benefits & Executive Compensation group; and associate Jessica I. Kriegsfield discuss the new NASDAQ and NYSE clawback policy requirements, including the new listing standards, what companies must include in their clawback policies, and what companies should do now. Speakers: Kate Basmagian, Partner, Chair, ESG Practice Christine Osvald-Mruz, Partner, Employee Benefits & Executive Compensation Jessica I. Kriegsfeld, Associate, Employee Benefits & Executive Compensation

A well-thought-out hiring process can help companies not only attract and retain top talent, but it can also ensure that companies meet legal obligations, obtain necessary protections, and avoid costly mistakes. In this episode of Just Compensation: Lowenstein’s Employee Benefits & Executive Compensation Podcast, Megan Monson, Julie Levinson Werner, Taryn E. Cannataro, and Amy C. Schwind discuss best practices for onboarding new employees, and recent legal developments that may impact how a company approaches this process. The attorneys give an overview of documentation that should be in place before hiring new employees, such as offer letters, restrictive covenant agreements, employment policies, and an employee handbook, as well as state-specific forms regarding such issues as taxes, direct deposit authorizations, and electronic monitoring; they also explain the importance of correctly classifying employees as either exempt or nonexempt, and the possible penalties for failing to comply with these and other wage and hour requirements. Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Julie Levinson Werner, Partner, Employment Counseling & Litigation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation Amy C. Schwind, Counsel, Employment Counseling & Litigation

Today on Just Compensation, Megan Monson, Julie Levinson Werner, Taryn E. Cannataro, and Amy C. Schwind discuss some of the issues an employer must consider as the workforce becomes increasingly remote. They recommend that employers set clear expectations on issues such as hours and availability for employees who work from home, and they encourage employers to be aware of compliance issues arising from such state specific requirements such as non-competes, benefits, wage and hour laws, and reporting obligations. Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Julie Levinson Werner, Partner, Employment Counseling & Litigation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation Amy C. Schwind, Counsel, Employment Counseling & Litigation

Megan Monson, Amy Komoroski Wiwi, and Jessica I. Kriegsfeld talk about recent developments and trends in the law relating to employment-related non-competition agreements, including a proposed federal rule that could significantly limit their use. They also explore potential ideas and workarounds for employers to consider in place of non-competes in order to provide protection to a company. Note: Since the time of recording this episode, NY law has now passed both the senate and assembly. Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Amy Wiwi, Partner, Employment Counseling & Litigation Jessica Kriegsfeld, Associate, Employee Benefits & Executive Compensation

Andrew E. Graw, Megan Monson, Jessica Kriegsfeld discuss the SECURE 2.0 Act and some of the retirement plan changes it will create in 2023 and beyond, such as raising the age for taking required minimum distributions from tax-qualified plans; mandating automatic enrollment; and increasing the catch-up contribution limit. The lawyers explain the public policy behind the changes— to increase retirement plan savings as well as the number of people participating in 401Ks, —and reiterate the importance of employers providing information that allows employees to make educated decisions about their retirement plan savings and deferral elections. Episode Resource: SECURE 2.0 Legislation: Impact on Qualified Plans (EBEN) | Lowenstein Sandler LLP Speakers: Andrew E. Graw, Partner and Chair, Employee Benefits & Executive Compensation Megan Monson, Partner, Employee Benefits & Executive Compensation Jessica Kriegsfeld, Associate, Employee Benefits & Executive Compensation

The latest “Just Compensation” podcast features Megan Monson, Taryn E. Cannataro, and Jessica Kriegsfeld of Lowenstein’s Employee Benefits & Executive Compensation group describing some of the benefits-related considerations of which buyers should be aware in transactions involving an entity that uses a professional employer organization or PEO. Many companies use PEOs to handle HR tasks such as payroll; however, acquiring a company that uses a PEO may require a different approach for deal documentation and consideration on the go-forward status of health/welfare and retirement plans, including understanding procedural requirements and limitations to name a few—all of which could cause unexpected delays and administrative burdens. Episode Resources: 401k Plan Considerations in M&A Transactions Acquiring a Company That Uses a Professional Employer Org. Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation Jessica Kriegsfeld, Associate, Employee Benefits & Executive Compensation

In this edition of “Just Compensation,” Andrew E. Graw, Chair of Lowenstein’s Employee Benefits & Executive Compensation practice, talks with partner Megan Monson and counsel Taryn E. Cannataro about 401(k) plan considerations in the context of mergers and acquisitions. They address potential alternatives on what to do with a target’s 401(k) plan (if anything) in a transaction, including some pros/cons of each approach; specific considerations for 401(k) plans that vary based upon deal structure; the 401(k) plan termination process; and the importance of employee messaging related to 401(k) plan treatment. Speakers: Andrew E. Graw, Partner and Chair, Employee Benefits & Executive Compensation Megan Monson, Partner, Employee Benefits & Executive Compensation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation

In this episode, the hosts discuss how companies can structure “in-the-money” stock options in order to avoid violating IRS rules governing non-qualified deferred compensation. They also address the benefits and potential downsides to this kind of option and what companies should know if they’re looking to grant them. Speakers: Andrew E. Graw, Partner and Chair, Employee Benefits & Executive Compensation Megan Monson, Partner, Employee Benefits & Executive Compensation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation

Lately, more and more companies are unfortunately finding themselves in a situation where they need to lay off part of their workforce. This discussion outlines some of the high-level considerations to keep in mind as companies navigate this process, including whether to offer the impacted employees’ severance or other benefits like extended COBRA; whether the company should require employees to sign a release in connection with severance offer, and if there is any risk of violating the ADEA, WARN Act, or other protective state or federal statutes. The panelists also address extending the post-termination period during which an employee might be eligible to exercise vested stock options, and the PR ramifications of layoffs. Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Julie Levinson Werner, Partner, Employment Counseling & Litigation Jessica Kriegsfeld, Associate, Employee Benefits & Executive Compensation

Darren Goodman, Megan Monson, and Taryn E. Cannataro of Lowenstein’s Executive Compensation & Employee Benefits Group discuss what companies can or should do if stock options are about to expire, which is a particular concern in today’s uncertain economic climate. Speakers: Darren Goodman, Partner, Employee Benefits & Executive Compensation Megan Monson, Partner, Employee Benefits & Executive Compensation Taryn E. Cannataro, Counsel, Employee Benefits & Executive Compensation

Darren Goodman and Taryn Cannataro of Lowenstein’s Employee Benefits and Executive Compensation group are joined by guest Eric Weiner, partner in the firm’s Tech Group and the Co-Chair of Lowenstein Crypto to discuss a hot topic and emerging trend in executive compensation: cryptocurrency and token issuances. Despite the recent downturn in the crypto markets, we have continued to see crypto employers granting tokens to incentivize their employees. This podcast episode provides a brief overview of the various forms of token issuances, how token awards differ from equity awards from a tax perspective, and considerations to keep in mind if you plan to grant tokens to employees. Speakers: Darren Goodman, Partner, Employee Benefits & Executive Compensation Eric Weiner, Partner, Tech Group and Co-Chair of Lowenstein Crypto Taryn E. Cannataro, Associate, Employee Benefits & Executive Compensation

Megan Monson, Andrew E. Graw, Taryn E. Cannataro of Lowenstein’s Employee Benefits & Executive Compensation group discuss with partner Marie DeFalco, Co-Chair of the firm’s Investment Management group, the significance of the QPAM exemption from ERISA prohibitions on transactions with a party in interest for investment advisers. The group explains current and possible new requirements for qualifying for the QPAM exemption; registration and recordkeeping rules; the potential impact of raising the required total AUM; and how the lack of a lack of a “grandfathering” period can prove a challenge for investment advisers. Episode Resources: DOL Proposes Significant Changes to the QPAM Exemption for Managing ERISA Assets Plan Fiduciaries, Including Investment Advisers and Fund Managers, Take Note – U.S. Department of Labor Proposes Enhanced QPAM Requirements Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Andrew E. Graw, Partner and Chair, Employee Benefits & Executive Compensation Taryn E. Cannataro, Associate, Employee Benefits & Executive Compensation Marie DeFalco, Partner and Co-Chair, Investment Management Group

In this episode of “Just Compensation,” Megan Monson, Taryn E. Cannataro and Darren Goodman discuss phantom equity, which is a type of bonus plan often utilized by privately held companies, particularly when the company's stock has declined in value. The episode touches on why a company might want to issue phantom equity, why might an employee want to receive it, and what timing, taxation and other considerations should one keep in mind when designing this kind of arrangement as an alternative to issuing actual equity. Speakers: Megan Monson, Partner, Employee Benefits & Executive Compensation Darren Goodman, Partner, Employee Benefits & Executive Compensation Taryn Cannataro, Associate, Employee Benefits & Executive Compensation

James Gregory, Batool T. Banker, and Taryn E. Cannataro of Lowenstein’s Employee Benefits & Executive Compensation practice lay out tips for negotiating a fulsome executive employment agreement for both new hires and existing employees whose employer is undergoing a change in control. The lawyers discuss the importance of clear contractual terms governing issues such as duration, termination, severance, and compensation – including cash compensation and equity; as well as non-competes, non-solicits, and other restrictive covenants. Speakers: James Gregory, Partner, Employee Benefits & Executive Compensation Batool Banker, Associate, Employee Benefits & Executive Compensation Taryn Cannataro, Associate, Employee Benefits & Executive Compensation

In the current state of the economy, stock option repricing may be a valuable tool in incentivizing employees. Partners Darren Goodman and Megan Monson talk with Taryn Cannataro about the benefits of repricing, the variety of forms they can take, and potential downsides tech companies need to be aware of before embarking on a stock option repricing. Speakers: Darren Goodman, Partner, Employee Benefits & Executive Compensation Megan Monson, Partner, Employee Benefits & Executive Compensation Taryn Cannataro, Associate, Employee Benefits & Executive Compensation