Jason A. Rothman

Jason advises clients on their tax-qualified plans including plan design and adoption, ERISA compliance, day-to-day plan operation, fiduciary compliance, IRS and DOL plan audits and submissions under the Employee Plans Compliance Resolution System (EPCRS), the Voluntary Fiduciary Correction Program, and the Delinquent Filer Voluntary Compliance Program. In addition, he advises employers on their welfare benefit plan compliance issues. This includes counseling employers on the Affordable Care Act, COBRA, HIPAA, ERISA, and wellness plan design.

Jason counsels employers on executive compensation issues, including nonqualified plan design, employment agreements, severance agreements and general compliance issues arising under Internal Revenue Code Section 409A. He assists employers on employee benefits issues that arise in mergers and acquisitions, performing due diligence and drafting proper purchase agreement provisions affecting employee benefits and executive compensation matters.

Jason received his JD from Cleveland State University College of Law and his BSBA from The Ohio State University.

Honors & Recognitions

• The Best Lawyers in America, Employee Benefits (ERISA) Law (2024)

Education

J.D., cum laude, Cleveland State University College of Law, 2003

B.S.B.A., The Ohio State University, Fisher College of Business, 2000

Experience

• Providing ongoing advice to two separate but related state-run retirement plans regarding benefit plan matters, including concerning the pension and healthcare arrangements these plans maintain. Notable recent projects include (1) Advising the client on reviewing and negotiating a new services agreement with a large pharmacy benefit manager to provide pharmacy benefits to over 200,000 members covered under the retiree health plan; (2) Advising the client with respect to state law requirements for retiree health systems under the state’s new disclosure and transparency laws for health plan providers; (3) Advising the client with respect to a Request for Proposals and subsequent negotiations with third-party administrators for its retiree health plan as well as its pharmacy benefit management agreement.; and (4) Advising the client with respect to administrative and compliance questions related to its retirement pension plan, including questions regarding the application of the annual benefit limits under Section 415 of the Internal Revenue Code.
• Regularly advising a health insurance company on legal issues that arise in the operation and administration of its employee benefits and executive compensation programs. Recently, Calfee advised the client with respect to separation agreements with executives who will be retiring at the end of 2023 and their entitlements under the company’s long-term and short-term incentive plans, non-qualified deferred compensation plans, and other arrangements. Calfee advised the client on questions arising from integrating benefit plans from companies it has recently acquired, and we are assisting with a multi-state assessment of state-level leave and benefits laws and advising on compliance thereunder.
• Regularly advising a large religious organization client with $125+ million in net assets on its day-to-day issues related to operating its various retirement and health plans. We advised the client on transferring employees from one client entity to another, which provides different benefit plans and the amendments necessary to effect the transition. We work with the client and several of its affiliated entities on day-to-day compliance issues for their benefit programs and advise the client on the impact on its group health plan of changes in law and regulations, including in connection with the COVID-19 crisis (and of the recent declaration of the end of the COVID-19 Public Health Emergency), as well as other state and federal laws or mandates.
• Providing broad representation as to employee benefit matters and executive compensation matters to this Fortune 1000 global manufacturing client. Calfee regularly advises the client on M&A activity and its impact on the company’s retirement plans as well as on executive compensation matters. We also regularly advise the client on amending its various pension and 401(k) plans in connection with the acquisition of new companies within the company’s controlled group or the sale of companies from its controlled group. This client, with 15,000+ employees worldwide, sponsors several defined benefit and defined contribution plans for both non-union and union employees. Notable projects during the last year have included providing advice on 401(k) plan and pension plan integration issues resulting from acquisition and divestiture activities.
• Advising a publicly traded global manufacturing company with respect to (i) analysis of the company’s equity incentive plan under proxy voting guidelines from Institutional Shareholder Services; (ii) federal tax withholding requirements of supplemental wages earned under the company’s equity compensation plan.
• Representing the holding company of a global packaging provider with respect to the termination of the ESOP and other benefit plans, including in the UK and Europe. We counseled the client with respect to a pass-through vote on the sale by ESOP participants, and we also provided counsel with respect to the termination of the company’s retiree welfare programs, foreign subsidiaries’ employee ownership arrangements, a UK pension plan, and other executive and deferred compensation arrangements. In addition, the holding company became the sponsor of the ESOP in the transaction, and we continue to represent the client with respect to the termination of that plan, as well as other post-closing benefit aspects of the transaction, including those involving the UK pension plan and deferred compensation arrangements and related purchase price adjustments, and the benefits aspects of the winddown and dissolution of the holding company.
• Serving as sole Employee Benefits counsel and regularly advises this 30,000-employee client with respect to various matters related to its multibillion-dollar 401(k) plan trust and pension plan trust, and executive benefit plans including plan design, plan integrations, plan administration, service provider contracts, investment management and investment advisor agreements and related plan and trust terms. We also advise the client (in its plan sponsor and plan fiduciary roles) with respect to changes in law, including evolving Internal Revenue Service, Department of Labor (DOL), and Securities Exchange Commission (SEC) regulations. The engagements under the plans often require reviewing and negotiating investment advisory and other services agreements with the financial institutions and advising on related plan and trust provisions.
• Regularly providing a U.S. division of a global manufacturing company and its affiliated companies with advice on the operational and compliance issues underlying their health and welfare benefit plans for 53,000 employees, retirees, and respective dependents. Recent highlights include: (1) Negotiate and renew a multi-billion-dollar services agreement with its pharmacy benefit manager for prescription drugs and health plan third-party administrator; (2) Draft and negotiate a series of service agreements with vendors providing various benefit programs, e.g., mental health counseling, pet care, fertility and parenting advice, employee mental health services, backup childcare, HRA COBRA administration, and wellness plan services/benefits; (3) Assist on plan participant communications and distribution strategies; (4) Draft an updated Summary Plan Description covering all welfare benefits under one document and incorporating certain insured benefits and documents; (5) Advise on the design, establishment, and implementation of a Voluntary Employees’ Beneficiary Association (VEBA) as a funding vehicle for $1 billion in present value of retiree medical benefits; (6) Advise on the impact on its group health plan of changes in federal and state law and regulations, including in connection with the COVID-19 pandemic, including administering relief for flexible spending accounts, assistance in administering Consolidated Omnibus Budget Reconciliation Act (COBRA) subsidies, extensions and relief periods provided for under the American Rescue Plan Act (ARPA), and advising the company through COVID-19 vaccination programs and policies as well as the impact of the recent declaration of the end of the COVID-19 Public Health Emergency; (7) Assist in Mental Health Parity and Addiction Equity Act compliance; (8) Provide strategic and compliance advice related to welfare and fringe benefits imputed income issues; (9) Assist in the administration and integration/disintegration of employee welfare benefits in response to the company’s various acquisitions and divestitures.
• Regularly providing day-to-day employee benefits advice to a European company on its 401(k) plan, pension plan, defined benefit plan, and health & welfare benefits (including medical, dental, vision, life, disability, and cafeteria plan). Calfee also assists in certain U.S. employment compliance areas (including FMLA and wage & hour compliance). Calfee recently assisted with 401(k) plan nondiscrimination compliance and assisted the company’s health savings account administration and participant communications associated with their HSAs. Calfee has advised on the company’s retirement plan strategy in consideration of the current three-plan design approaches.
• Providing day-to-day employee benefits advice to a multistate metals industry company on its 401(k) plan and health & welfare benefits (including medical, dental, vision, life, disability, and cafeteria plan). We recently assisted in negotiating a settlement of a subrogation claim involving the company’s health plan and assisted the company’s SECURE 2.0 Act compliance and strategy for the company’s 401(k) plan. Calfee assists with the company’s medical plan on compliance with the Mental Health Parity and Addiction Equity Act and negotiation of service agreements with the company’s welfare benefit plan service providers.
• Providing day-to-day employee benefits advice to a multi-state medical services company on all areas of employee benefits law including advising on the company’s 401(k) plan, flexible benefits plan (including medical, dental, vision, life, disability, and cafeteria plan), and nonqualified deferred compensation plan. We recently assisted in negotiating the company’s service agreement for its cafeteria plan with the new third-party administrator and assisted with the company’s HIPAA compliance and related documentation for the health plan. We continue to assist with the company’s medical plan on compliance with the Mental Health Parity and Addiction Equity Act.
• Advising a public, multinational technology company with respect to (1) administration of distributions and tax withholding under the company’s nonqualified deferred compensation plans; (2) compliance with the DOL’s requirements for top hat plan filings; and (3) analysis of “compensation” for nonqualified deferred compensation plan administration and distribution purposes.
• Advising a publicly traded multilevel marketing company with respect to (1) updating the eligibility and vesting provisions of the company’s non-qualified deferred compensation plan; and (2) advising the company on the treatment of short-term disability pay under the non-qualified deferred compensation plan.
• Assisting our global, publicly traded manufacturing company client with respect to certain employee benefit-related litigation and benefit claims matters (1) Continuing assistance in negotiating plan service agreements to reduce exposure for the client and its plans; (2) Assistance in responding to participant pension benefit claims, such as ones associated with disputes concerning service crediting, benefit calculations, prior distributions, and predecessor plan provisions; (3) Assistance in responding to participants’ health plan benefit claims in the claims-review adjudication process, including through multiple administrative levels of appeal and responses to participants’ and their authorized representatives’ requests for plan documents; (4) Continued assistance in assessing plan fiduciary duties in relation to a large insurance company class action antitrust settlement; (5) Continued assistance in updating retirement and welfare plan provisions for evolving case law on claims adjudication provisions (such as with respect to equitable liens, anti-assignment provisions, claims with respect to non-network providers, breadth of claims subject to plan claims review procedures, and time and venue limits on bringing suit), and assistance with enhancing retirement plan governance procedures, as proactive measures.

Professional & Community

• American Bar Association, Member
• Ohio State Bar Association, Member
• Worldwide Employee Benefits Network (WEB), Member
• Greater Cleveland Sports Commission, Associate Board Member
• Leadership Lorain County, Class of 2007

Services

Tax Qualified Plans

• Drafts plan documents and amendments
• Assists clients in determination letter submissions
• Counsels employers on the day-to-day operation of tax-qualified retirement plans
• Advises employers on multiemployer pension plans including issues related to withdrawal liability
• Handles representation of organizations in audits of tax-qualified plans before the Internal Revenue Service and Department of Labor
• Provides assistance to clients on submissions under the Employee Plans Compliance Resolution System, Voluntary Fiduciary Correction Program and Delinquent Filer Voluntary Compliance Program

Welfare Benefit Plans

• Counsels employers on healthcare reform compliance
• Advises clients on welfare benefit regulatory compliance issues, including compliance with COBRA and HIPAA requirements
• Assists clients on the proper design and administration of cafeteria plans
• Provides wellness plan design and compliance advice

Executive Compensation

• Provides counsel to publicly traded companies with respect to Internal Revenue Code Section 162(m) and 280G compliance
• Advises employers all aspects of Internal Revenue Code Section 409A
• Drafts nonqualified plans, employment agreements, and severance agreements

Mergers and Acquisitions

• Performs due diligence and counsel related to employee benefit compliance issues
• Assists in preparation of purchase agreement provisions affecting employee benefit plans and executive compensation matters

Presentations & Articles

Presentations

• Worldwide Employee Benefits Network (WEB), Northeast Ohio Chapter, Annual Legal and Regulatory Update, "Retirement Plan Developments," Cleveland, March 14, 2024
• Strafford Webinar, "Retirement Plan Distributions Under SECURE 2.0: New Penalty-Free Options, Hardship Distributions, Documentation," September 28, 2023
• Employers Council on Flexible Compensation (ECFC) 2023 Symposium, "Fix My Flexible Benefits?" Nashville, TN, August 2, 2023
• HR Collaborative Conference Presentation, "Employee Benefits – Not Top 10," Cincinnati, April 26, 2023
• Lorman Education Services Webinar, "Assisting Your Employees in Meeting Their Retirement Goals," August 9, 2022
• Employers Council on Flexible Compensation (ECFC) 2022 Symposium, "How Flexible Are Your Benefits?" Orlando, FL, August 4, 2022
• Worldwide Employee Benefits Network (WEB), Northeast Ohio Chapter, Annual Legal and Regulatory Update, “Health & Welfare Plan Developments," Webinar, March 10, 2022
• BenefitsPRO Broker Expo, "BidenCare and COVID-19 – Welfare Plan Change for 2021 and Beyond," San Diego, August 17, 2021
• Ogletree Deakins Podcast, "Breaking Down Benefits: Is Your Wellness Plan Healthy?" August 5, 2021
• Workplace Strategies Virtual Seminar, "Employee Benefits in the Time of COVID," June 25, 2021
• Ogletree Deakins Podcast, "Breaking Down Benefits: ERISA Plan Documents and Summary Plan Descriptions," April 5, 2021
• Employee Benefits Symposium, "Vaccine Incentives: Legal and Practical Issues for Employers," February 19, 2021
• Ogletree Deakins Webinar, "COVID-19 Update for Employers: Employee Benefits and Compensation Issues," March 25, 2020
• Ogletree Deakins Webinar, "COVID-19 Update for Employers: Employee Benefits and Compensation Issues," March 23, 2020
• Ogletree Deakins Webinar, "Sizing Up the SECURE Act," February 19, 2020
• Worldwide Employee Benefits Network (WEB), Northeast Ohio Chapter & Cleveland SHRM Joint Program, "Getting Your Employee Benefits House in Order – Qualified Benefit Plans," Cleveland,  November 14, 2019
• Employers Council on Flexible Compensation 2019 Symposium, "Modernizing Leave and Its Compliance Issues," Cincinnati, August 7, 2019
• BenefitsPRO Broker Expo, "Employee Benefits Not Top 10," Miami, April 3, 2019
• Employers Council on Flexible Compensation 2018 Symposium, "First Aid for Benefit Plans," San Diego, August 8, 2018
• Ohio State Bar Association Webcast, "ERISA Fiduciary Overview," May 23, 2018
• Ohio State Bar Association Webcast, "Tax Reform's Impact on Employee Benefit Programs," March 1, 2018
• Construction Financial Management Association 2017 Buckeye Regional Conference, "401(k) Fiduciary Responsibility Panel," Toledo, September 27, 2017
• Ohio State Bar Association Webcast, "What Employers Should Know About Their Health Plans," August 2, 2017
• Ohio State Bar Association Webcast, "Fixing Tax Qualified Plan Failures Under EPCRS," May 2, 2017
• EBN Benefits Forum & Expo, "Minimizing the Cost of ACA Penalties – Not the Same Thing as Avoiding ACA Penalties," Nashville, September 29, 2016
• Ohio State Bar Association Webcast, "The Employee Benefits Not Top 10," February 14, 2016
• Ohio State Bar Association Webcast, "First Aid for Employee Benefit Plans," July 29, 2015
• Crain's Cleveland 2015 Health Care Forum, "Promoting Wellness Amid a Challenging Regulatory Landscape," Cleveland, June 2, 2015
• Akron Area SHRM, "Affordable Care Act Update," Akron, May 13, 2015
• Ohio State Bar Association Webcast, "What Businesses Should Know About Health Care Insurance," March 12, 2015
• HR.com Webinar, "Affordable Care Act Update," February 18, 2015
• HR.com Webinar, "First Aid for Benefit Plans," October 10, 2014
• OSBA 51st Annual Midwest Labor and Employment Law Seminar, "Affordable Care Act Update," Columbus, October 10, 2014
• Lorman Education Services, "Healthcare Reform and the Employer Mandate," Independence, August 22, 2014
• HR.com Webinar, "First Aid for Benefit Plans," May 15, 2014
• Worldwide Employee Benefits Network (WEB), Cleveland Chapter, Annual Legal and Regulatory Update, "Welfare Plan Developments – PPACA and DOMA," Cleveland, March 20, 2014
• Ohio State Bar Association Webcast, "What Businesses Should Know About Health Care Insurance," March 12, 2014
• Western Reserve Chapter of SHRM, "The Changing World of Employee Benefits – The Affordable Care Act and DOMA," Niles, March 11, 2014
• Center for Competitive Management Webinar, "Benefits in a Post-DOMA Workplace: Managing the Impact of the Windsor Decision on Benefit Plans," February 21, 2014

Published Works

• Winter 2024, Journal of Taxation and Investments, "IRS Issues First Big Grab Bag of Guidance on SECURE 2.0 Act"
• May 20, 2021, Benefits Pro, "American Rescue Plan Act: Employee Benefits Changes You Should Know"
• April 8, 2020, Today's General Counsel, "Unpaid Leaves and Furloughs During the Pandemic"
• October 4, 2018, Employee Benefit Advisor, "Severance Plans, Part 2: How Savvy Employers Prevent COBRA Issues"
• October 3, 2018, Employee Benefit Advisor, "Severance Plans, Part 1: How Savvy Employers Can Stay ERISA Compliant"
• May 30, 2018, Employee Benefit Advisor, "IRS Unveils 2019 HSA and HDHP Limits for Contributions"
• October 2015, Employee Benefits and Wellness Excellence Essentials, "Guest Editor’s Note"
• March 2015, Health Action Council Newsletter, "Recent Cyber Attack Serves as Reminder to Review HIPAA Documents"
• September 8, 2014, SHRM.org, "Contributing Employer Cannot Sue Multiemployer Pension Plan Trustees"
• November 1, 2013, SHRM.org, "Government Enjoined From Enforcing ACA Contraceptive Mandate Against Employer"
• July 2013, The Federal Lawyer, "Employee Benefit Plan Failures and Correction Opportunities"
• Summer 2013, Ohio State Bar Association, Fine Print, "Ohio Provides Continuing ‘Mini-COBRA’ Coverage for Former Small Business Employees"

Mentioned & Quoted

• April 3, 2020, Taxnotes, "Coronavirus Could Trigger Exception to Deferred Comp Rules"
• March 2, 2020, Law360, "High Court ACA Case Could Devastate Employee Health Plans"
• May 31, 2019, Law360, "Ogletree Brings Back Employee Benefits Pro"
• Nov/Dec 2017, PLANADVISOR Magazine, "The Next Step – Advisor Choices on Participant-Level Fiduciary Recommendations"
• February 17, 2017, Columbus Business First, "When Trump Tweets, Benefit Advisors' Phones Ring – Here's What Clients Want to Know"
• June 2016, Plan Sponsor Magazine, "Minding the Gap"
• April 23, 2015, Bloomberg BNA – Health Law Reporter, "EEOC Issues Proposed Rule Regarding ADA Regulations on Employer Wellness Programs"
• October 10, 2014, Law 360, "3 Tips for Avoiding EEOC Suits Over Wellness Programs"
• May 2, 2014, Bloomberg BNA – Pension & Benefits Daily, "Employers Need Strategies to Prepare for Employee Premium Tax Credit Notices"
• April 29, 2014, Human Resource Executive, "A Short-Term Solution for Tough Economic Times?"
• January 5, 2014, Workforce, "The Benefits of a Post-Windsor World"
• June 28, 2013, The Washington Post, "Private Companies Grapple With Supreme Court’s DOMA Decision"
• June 27, 2013, Bloomberg, "Supreme Court Ruling Narrows Gay Couples’ Benefit Gap"
• June 26, 2013, JD Supra, "Love Is Love, But in Light of DOMA Employers Should Adjust Health, Retirement, and Tax Planning"
• June 26, 2013, Employment Law Daily, "DOMA Doomed Under Constitutional Equal Protection Guarantees"
• January 31, 2013, Human Resource Executive, "Get Fit . . . Or Pay the Price"