Eric D. Penkert

Eric helps employers navigate the complicated world of employee benefits laws. He counsels clients on qualified and nonqualified retirement plans, executive compensation, and health and welfare benefits, including associated fiduciary and plan governance issues. Eric reviews current employee plans, guides employers through review of and changes to plan designs, including in the context of mergers and acquisitions. He also assists employers in the correction of operational errors in both qualified and nonqualified plans. Eric represents businesses across numerous industries, including healthcare, retail, hospitality, chemical, industrial, financial services, and legal services. He also represents tax-exempt and non-profit employers in the educational, healthcare, and affordable housing space, as well as governmental and tribal employers.

Retirement Plan Administration

Clients look to Eric for assistance with both the design and preparation of qualified plans such as 401(k) and profit sharing plans and regularly advises and counsels clients on matters of ongoing plan administration, including:

• Analyzing and resolving multi-year, multi-million dollar qualified plan compliance failures through the Voluntary Correction Program (VCP) of the IRS Employee Plans Compliance Resolution System (EPCRS)
• Analyzing and resolving prohibited transactions (such as delinquent remittance of employee 401(k) contributions) through the U.S. Department of Labor Voluntary Fiduciary Correction Program (VFCP)
• Conducting employer training on fiduciary issues associated with 401(k) plan and 403(b) plan administration
• Representing employers in the course of multi-year IRS retirement plan audits
• Conducting due diligence of retirement plan issues in preparation for mergers, acquisitions and dispositions

Executive and Incentive Compensation

Eric helps clients with complex issues related to the administration of executive compensation and incentive compensation agreements. Eric regularly assists employers with matters related to nonqualified plans and other executive compensation issues, including:

• Designing, implementing and administering executive compensation arrangements, including short and long-term incentive arrangements, deferred compensation and supplemental executive retirement arrangements (including related insurance arrangements), as well as retention and separation agreements
• Advising clients on tax and regulatory compliance matters, including federal and state withholding taxes and the application of Internal Revenue Code Sections 409A, 162(m), 280G, 83(b), and 4960
• Designing and preparing employee stock purchase plans in compliance with Internal Revenue Code Section 423, including preparation of employee communications and proxy materials

Welfare and Fringe Benefit Plan Administration

Eric regularly advises clients regarding complex welfare benefit administration challenges. He counsels clients on everyday issues of plan administration, including Internal Revenue Code, ERISA, COBRA and Affordable Care Act compliance, including

• Analyzing and advising employers on welfare plan design, including revision and restatement of welfare (wrap) plan documents and Internal Revenue Code Section 125 cafeteria plan documents
• Designing and preparing employee fringe benefits such as qualified educational assistance plans, paid time off and leaving sharing and donation plans, and employee reimbursement through accountable plan and per diem arrangements
• Assisting employers in negotiation and reduction of penalty assessments under the Employer Shared Responsibility rules of the Affordable Care Act, including responses to IRS Letters 226J, and amendment of Forms 1094-C and 1095-C
• Preparing and revising staffing company agreements to protect clients from the risk of ACA penalties resulting from employee misclassification
• Advising clients on ERISA and COBRA compliance strategies and options related to on-site clinics, wellness programs, and EAPs
• Revising and restructuring multiple separation pay plan documents and administrative processes ahead of major restructurings