Update ESOPs For New Investment Diversification Guidance

Fiduciaries, administrators, sponsors, advisors, trustees and others with involvement or responsibility for Employee Stock Option Plans (ESOPs) should review these rules and ensure that appropriate steps are taken to update their plan terms and practices to comply with new rules scheduled to be published in the Internal Revenue Bulletin on May 13, 2013 by the Internal Revenue Service on investment diversification.

Maintaining legally compliant and defensible arrangements for investing company stock in employee stock and other defined contribution employee benefit and deferred compensation plans continues to become increasingly complicated in the face of the expanding range of rules adopted by Congress and federal regulators looking to protect participants against stock drop and other actual or perceived abuse.

Among these tightening requirements are new rules announced in Notice 2013-17, which address the circumstances in which an ESOP that satisfied the diversification requirements of § 401(a)(28)(B)(i) by allowing distribution of a portion of a participant’s account has become subject to the diversification requirements of § 401(a)(35).  Notice 2013-17 will be published in Internal Revenue Bulletin 2013-20 on May 13, 2013. 

The new diversification rules are reflective of a host of new and proposed rules and enforcement positions that Congress and federal regulators have or are contemplating to address perceived abuses or risks arising from the investment or retention of company stock in employee benefit plans.  Some of this new regulation arises from decline in retirement plan asset value that results from declines in stock value when the economy or a particular business suffers economic setbacks.  Along with these economic concerns, other regulation seeks to safeguard participants and plans against Enron, Madoff or other activities by plan sponsors, investment advisors, executives or others that Congress or regulators perceive inappropriately put retirement and savings of workers at risk. 

In response to Notice 2013-17 and other new rules, fiduciaries, administrators, sponsors, advisors, trustees and others with involvement or responsibility for ESOP should review these rules and ensure that appropriate steps are taken to update their plan terms and practices to comply with this new guidance.  In conjunction with this review, most also will find advisable to review the adequacy of their existing policies and plan terms about their program’s investments in company and other stock in light of evolving fiduciary responsibility and other investment rules and enforcement guidance of the Internal Revenue Service as well as the Department of Labor Employee Benefit Security Administration and the Securities and Exchange Commission.

If you have any questions or need help reviewing and updating your ESOP or other employee benefit plans, or with any other workforce management, employee benefits or compensation matters, please do not hesitate to contact the author of this update, Board Certified Labor and Employment Attorney and Management Consultant Cynthia Marcotte Stamer at 469.767.8872.

 About The Author

Management attorney and consultant Cynthia Marcotte Stamer helps businesses, governments and associations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to meet their business and operational goals and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 25 years human resource, employee benefits and management experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, she also serves in leadership positions in many human resources, corporate compliance, and other professional and civic organizations. For more details about Ms. Stamer’s experience and other credentials, contact Ms. Stamer, information about workshops and other training, selected publications and other human resources related information, see here or contact Ms. Stamer via telephone at 469.767.8872 or via e-mail here.

Other Helpful Resources & Other Information

If you found these updates of interest, you also be interested in one or more of the following other recent articles published in this electronic Solutions Law publication available for review here including:

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©2012 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press, Inc.  All other  rights reserved. 

About Cynthia Marcotte Stamer

Management attorney and operations consultant Cynthia Marcotte Stamer uses a client objective oriented approach to help businesses, governments, associations and their leaders manage people, performance, risk, legislative and regulatory affairs, data, and other essential elements of their operations.
This entry was posted in CEO, D&O, Deferred Compensation Plans, Director Liabiloity, Employee Benefits, Employment, ESOP, Health Plans, Internal Controls, Officers, Reengineering, Retirement Plans, Stock Plans, Tax and tagged , , , , , , , . Bookmark the permalink.

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