No matter what the type of organization, playing an active role in the political decision-making process and policy formation is no longer a luxury—it is an imperative.
A coronavirus pandemic (or even the threat of such a pandemic) could easily make it more difficult for parties to perform their obligations under many types of contracts—especially contracts requiring travel or involving the delivery of goods and services. In the event that one of the parties to a contract can’t perform as a result of an actual or potential coronavirus outbreak, would the doctrine of force majeure allow them to suspend their performance or terminate the contract?
United States Army National Guard
A litigator focused on ERISA governance, Chris Humes pursues employers that do not pay required employee benefit contributions. Multiemployer trust funds also rely on Chris to help ensure their employee benefits and health care plans comply with federal guidance from Health and Human Services (HHS) and the Department of Labor (DOL).
Working primarily with Taft-Hartley trusts, Chris frequently drafts summary plan descriptions to be used as employee benefit handbooks. He keeps his clients up to date on federal and state regulations including the Affordable Care Act and the Pension Protection Act.
During and prior to law school, Chris served as a teacher in the Clark County School District for students with visual impairments.
Obtained summary judgment against Westgate LVH, LLC and a subsidiary company for successor withdrawal liability. Westgate purchased the Las Vegas Hilton after a foreclosure auction. However, the Hilton did not pay its share of unfunded vested liability to a multiemployer pension plan. The Plan then successfully pursued Westgate for successor withdrawal liability and was awarded a judgment for over $2M. Westgate LVH, LLC v. Trustees of Nevada Resort Ass'n-Iatse Local 720 Pension Tr., No. 217CV01731RFBNJK, 2019 WL 4738013 (D. Nev. Sept. 28, 2019).
Obtained summary judgment against Nevada Labor Commissioner that state statute purporting to regulate trusts was preempted by ERISA. Board of Trustees of the Glazing Health and Welfare Trust v. Chambers, 168 F. Supp.3d 1320 (D. Nev. March 10, 2016). After the Nevada legislature modified the statute and a 2-1 Ninth Circuit decision reversing the district court, obtained unanimous en banc opinion from Ninth Circuit Court of Appeals that the issue was moot.
Obtained temporary restraining order against the Clark County School District due to an alleged Open Meeting Law Violation, halting its plan to remove over 170 people from their Dean of Students positions. The restraining order combined with public pressure caused the District to abandon its plan of removing all of the Deans.
Obtained judgment against benefit plan participant who committed fraud by misrepresenting his marriage statuses in an attempt to gain more benefits than he was entitled to receive.
Obtained judgment after trial for full amounts owed including delinquent contributions, liquidated damages, interest, attorney’s fees and audit fees. Trustees of Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Sotelo, 2018 WL 3240959 (D. Nev. July 3, 2018).
Obtained over $1 million judgment against alter ego entity of employer who failed to pay required employee benefit contributions. Board of Trustees of Teamsters Local 631 Security Fund for Southern Nevada v. Lightning Exhibits, LLC, No. 2:16-cv-03032, 2018 WL 4566668 (D. Nev. September 24, 2018).
Successfully obtained a $19.5 million interest arbitration ruling for the Clark County Association of School Administrators and Professional-Technical Employees (CCASA) against the Clark County School District, the fifth largest school district in the nation. After an arbitration hearing, the arbitrator determined that the District had the ability to pay CCASA’s offer and the administrators were historically and comparatively underpaid while work requirements were increasing.
Successfully defended employee benefit fund against a hospital’s $750,000 ERISA benefit claim. We prevailed on a motion for summary judgment by demonstrating that the underlying patient was not eligible for benefits at the time of treatment.
Nevada Labor Commissioner that the state statute purporting to regulate trusts was preempted by ERISA. Board of Trustees of the Glazing Health and Welfare Trust v. Chambers, 168 F. Supp.3d 1320, (D. Nev. March 10, 2016).
Successfully defended labor organization against a former member in a federal action alleging multiple discrimination claims and, simultaneously, in a proceeding in front of the Nevada Local Government Employee-Management Relations Board (“EMRB”). We prevailed in the EMRB Proceeding after participating in an administrative hearing and in the federal action by obtaining summary judgment. The labor organization was awarded attorneys’ fees in the federal proceeding as a prevailing defendant in a civil rights action.
Successfully navigated employer through a decertification campaign by workers who ultimately voted to de-certify the union, ending with no charges filed against employer.
Obtained judgment against a bond company for ERISA employer’s debt to multiemployer benefit trust funds and for attorneys’ fees in excess of bond limit. Trustees of the Plumbers and Pipefitters v Pyles, No. 12A663410, 2013 WL 6222083 (Nev.Dist.Ct. Oct. 18, 2013)
Families for Effective Autism Treatment, Board Member
How Employers Can Assist Employees (Current and Former) Right Now
Countless employers have been forced to reduce employees’ hours or terminate employees due to the 2019 novel coronavirus (“COVID-19”). Federal and state governments are working to pass stimulus legislation to assist the people and businesses most affected by the economic fallout created by this national emergency. In the meantime, beyond offering paid sick leave or implementing severance pay programs, employers can take other actions under existing employee benefit programs to cushion the fall for their current and former employees. Below is a summary of some of these actions:
An employer may set up a “qualified disaster relief program” under Code §139. Any amount paid to reimburse or pay reasonable and necessary personal, family, living or funeral expenses incurred as a result of a qualified disaster would fall within the definition of a qualified disaster relief payment to the extent any expense compensated by the payment is not otherwise compensated for by insurance or some other reimbursement.
Qualified disaster relief payments are excluded from an employee’s gross income and from the employee’s wages and compensation for purposes of employment taxes. As a result, these payments are not subject to federal income tax withholding, FICA or FUTA. The payments do not have to be reported by an employer making the payment on the receiving employee’s Form W-2, and do not have to be reported as income by the affected employee.12 Brownstein Comment: While current guidance does not require much, if any, recordkeeping, an employer should keep appropriate records in order to document its corporate tax deduction.
Please contact one of us or your regular Brownstein attorney for answers to your questions and help with addressing your concerns about how to assist employees in the midst of the economic fallout from the spread of the coronavirus. Among other things, we can help you determine if (and how) your plan needs to be amended and help you craft appropriate communications to your employees. We also have employment law experts who can help you address related employment law issues, including applicable state wage and leave laws.
Click here to read more Brownstein alerts on the legal issues the coronavirus pandemic raises for businesses.
1 Code § 4980B(f)(2)(C). The COBRA premium can be up to 115% for disabled individual coverage.
2 Prop. Treas. Reg. § 1.125-6(a)(4)(v).
3 Code § 129(e).
4 Prop. Treas. Reg. §§ 1.125-1(e) and 1.125-5(c)(1).
5 Treas. Reg. § 1.125-3, Q&A-7.
6 We are aware of prior informal non-binding remarks from officials in the IRS Office of Chief Counsel indicating that the DCAP election rules should be liberally interpreted.
7 Treas. Reg. § 1.72(p)-1, Q/A-9.
8 See Code § 72(p)(2).
9 Treas. Reg. § 1.401-1(b)(1)(ii); see also Rev. Rul. 68-24, 1968-1 C.B. 150. See also Rev. Rul. 54-231, 1954-1 C.B. 150.
10 Treas. Reg. § 1.401(k)-1(d)(3), as amended to reflect the SECURE Act.
11 See Treas. Reg. § 1.410(a)-7(g).
12 Note that applicable state and local laws need to be consulted to determine whether these amounts are subject to any state and local taxes (and related tax Qualified Disaster Relief Payments withholding).
Health Plan Coverage of Coronavirus Testing and Treatment
Brownstein Client Alert, March 12, 2020
“Actual Knowledge” Required to Apply ERISA’S Three-Year Statute of Limitations to Fiduciary Breach Claims
Brownstein Client Alert, February 27, 2020
Employee Benefits-Related Limits For 2020Brownstein Client Alert, November 7, 2019
IRS Implements Prospective Expansion of Determination Letter Program to Merged PlansBrownstein Client Alert, May 7, 2019
IRS Expands Self-Correction of Retirement Plan Errors
Brownstein Client Alert, April 25, 2019
Don't Ignore Successor Liability For Pension Plan WithdrawalCo-author, Law360, April 4, 2019
2019 Increases for Employee Benefits-Related Limits Brownstein Client Alert, November 16, 2018
Revised Employee Benefits-Related Limits for 2018; Decreases in Family HSA Contributions and Adoption Assistance Require ActionBrownstein Client Alert, March 6, 2018
Updated Employee Benefits-Related Limits for 2018
Brownstein Client Alert, November 30, 2017
Employee Benefits-Related Limits for 2018Brownstein Client Alert, November 7, 2017
Emerging Regulated Industries CLE
Co-facilitator, December 2016
Trustee Alert – Proposed Regulations on Reviewing and Responding to Disability ClaimsBrownstein Client Alert, February, 1, 2016
Trustee Alert – FAQs on Coverage of Preventive and Mental Health ServicesBrownstein Client Alert, December 1, 2015
Employee Benefits-Related Limits For 2016Brownstein Client Alert, November 2, 2015
Trustee Alert – Wellness ProgramsBrownstein Client Alert, April 27, 2015
Trustee Alert – Counting Employees for the Employer MandateBrownstein Client Alert, March 9, 2015
Trustee Alert – Transitional Reinsurance FeeBrownstein Client Alert, July 15, 2014
Trustee Alert – HIPAA EDI Certification Proposed RuleBrownstein Client Alert, March 17, 2014
Trustee Alert – Taxation of Benefits Post-WindsorBrownstein Client Alert, December 16, 2013
The Long and Winding Road: State Sovereign Immunity's Effect on Gaming License Revocation for the Casino DebtorAuthor, UNLV Gaming Law Journal, June 6, 2012
Army Achievement Medal, two-time recipient
Legal Elite, Nevada Business Magazine, 2017
State Bar of Nevada
Clark County Bar Association
Howard D. Mckibben American Inn of Court