The “intermediate sanctions” rules under Section 4958 of the Internal Revenue Code have long governed the payment of compensation to executives of public charities. While these rules are highly prescriptive, if followed, they offer taxpayers a significant advantage in the form or a rebuttable presumption of reasonableness. While there was concern among tax-exempts that the tax bill might reduce or even eliminate the presumption of reasonableness, that turned out not to be the case. But the final version of the legislation for the first time imposed a tax on certain excess compensation and excess parachute payments, which we discuss in more detail below.
Tyrone Thomas is a Member in the firm’s Washington, DC office. He advises boards, presidents, and senior executives of academic institutions on employment and consulting agreements. He is experienced with NCAA bylaws and procedures and has advised colleges and universities on Title IX, employment contracts and policies for athletics personnel, and privacy issues related to student-athlete records. Tyrone counsels clients on best practices for compensation, benefits, and post-employment covenants for executive contracts, He also advises nonprofits on deferred compensation plans, performance incentive programs, and separation agreements.
As of this writing, it has been over 850 days since the UConn women’s basketball team has lost a game. When the Huskies last tasted defeat (in an overtime thriller to Stanford on November 17, 2014), football players at Northwestern University were pursuing their rights to collectively bargain after a ruling by the NLRB regional director in Chicago held they were statutory employees. While the undefeated nature of women’s basketball in Storrs, CT has been a constant, the NLRB changed the game for Northwestern football players by declining to assert jurisdiction. However, there remains a feeling in certain quarters of college sports that some form of pay to student-athletes is inevitable.
The Treasury Department and the Internal Revenue Service recently issued comprehensive proposed regulations governing nonqualified plans subject to tax under Internal Revenue Code § 457. Code § 457 prescribes the tax rules that apply to “eligible” and “ineligible” nonqualified deferred compensation plans. Code § 457(b) defines the requirements to be an “eligible” nonqualified plan; a deferred compensation plan that does not satisfy the requirements of Code § 457(b) is an “ineligible” plan under Code § 457(f). Eligible and ineligible plans may be maintained only by state or local governments or organizations exempt from tax under Code § 501(c). The proposed regulations make the following changes:
Over the course of this and next week, we will discuss the final overtime rule’s impact and address related workplace issues on which employers should focus in advance of its December 1st implementation date. Today we focus on the rule’s impact on non-profits and educational institutions.
On Wednesday of this week, the Department of Labor announced its Final Rule, which is aimed at expanding overtime eligibility for millions of American workers. At its core, the final version of the rule doubled the minimum salary employers must pay “white collar” workers to maintain their exempt status. See our post here for a summary of the new regulations.
But what does this mean for non-profits, including educational institutions, which may be harder hit by these changes than private sector employers? In short, generally the same thing it means for any other employer.
This is the second installment of a series regarding legal issues affecting college athletics that will run during this year’s NCAA basketball tournament.
It is no secret that the salaries of coaches of high profile college programs are rising steadily. In a recent report listing the highest paid public employee for each of the fifty states, 40 were college coaches. While Alabama football coach Nick Saban led that list with annual compensation of around $7 million, the Chronicle of Higher Education also reported the Crimson Tide were just 1 of 10 athletic programs in 2014 to give more money back to its campus than it received in subsidies. As a famous comic book hero once said – “with great power, comes great responsibility.” It is therefore important to examine the legal concerns affecting coaching pay, which based on recent events, will increasingly include responsibility for conduct detrimental to athletic programs.
This is the first installment of a series regarding legal issues affecting college athletics that this blog will run during this year’s NCAA basketball tournament.
Two horrible March Madness brackets ago, we analyzed the myriad of legal and operational challenges that could change the face of intercollegiate athletics. The smoke has begun to clear on one critical issue – student-athletes have not been granted standing to assert rights as employees. Interestingly, the recent decisions involving the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA) on this issue have come at a time of expanding rights for student-athletes.
As wise employers focus strategic initiatives to enhance diversity and inclusion in the workplace, we periodically receive questions about limitations for proactive approaches in this area. To be clear, companies that conduct business with the federal government (and the OFCCP knows who you are) likely are subject to regulatory obligation to ensure and, where necessary, take affirmative action regarding the placement of women, minorities, protected veterans and persons with disabilities in relation to their availability for respective positions. Similarly, companies subject to a consent decree, conciliation agreement with the EEOC or some other legal finding or settlement involving a disparity affecting persons in protected classes would be subject to obligation of proactive steps to remedy such disparity.
But what of the company that engages in a “voluntary affirmative action policy” or merely seeks to put additional teeth to its diversity initiatives by attaching a qualitative scorecard to progress? The potential concern is that such efforts lead to vulnerability for a reverse discrimination claim.
Happy New Year from your friends at the OFCCP. This week brings the enforcement of requirements stated under Executive Order 13665, which prohibits federal contractors from discriminating or otherwise conducting adverse personnel actions against employees or job applicants for compensation inquiries, discussions or disclosures. The protections of the new regulations extend to discussions held by an employee regarding their own or another employee’s compensation. Therefore, covered employers with policies that prohibit or limit employees or applicants from communications about their compensation will need to amend such policies immediately.
In a mild surprise given the current constitution of the Board (read – majority appointed by President Obama), the NLRB declined to assert jurisdiction in ruling on the petition of Northwestern University’s scholarship football players to unionize. However, in a display of special teams not seen on a football field in Evanston, Illinois since the days of John Kidd, the NLRB reached its decision without determining if scholarship players were “employees” under the National Labor Relations Act. Even with this limitation, it is clear competitive balance considerations for NCAA Division I sports has received great deference as a policy matter in a legal dispute.