Susan E. Bernstein focuses her practice on ERISA issues for single, multiple and multiemployer qualified and nonqualified benefit plans, including: designing and amending plans; ongoing plan administration and regulatory compliance; monitoring legislative and regulatory developments; complying with ERISA reporting and disclosure requirements; preparing and negotiating IRS, DOL and PBGC filings; communicating with employees; and counseling clients on issues related to the merger and termination of benefit plans. Her experience includes advising clients on the design and administration of health and welfare benefit plans, including compliance issues regarding health care reform, COBRA and HIPAA, negotiating employment agreements and counseling employers on all aspects of executive compensation, including Section 409A compliance.

Susan also advises nonprofit and educational institutions on a wide range of issues, including board governance, by-laws, transitions, and employee benefit matters including 403(b) plans, 457(b) plans and 457(f) plans. Additionally, she negotiates employment contracts and nonqualified deferred compensation arrangements with particular attention to 990 reporting issues, reasonable compensation and compliance with the IRS intermediate sanction requirements, as well as New York Executive Order 38.

Publications

Articles and Books

“Insight: IRS Expands Missing Participant Guidance for 403(b) Plans,” Bloomberg Tax, March 8, 2018

“IRS Provides Some Relief on Missing Participant Compliance Concern,” Bloomberg BNA, Nov. 20, 2017; republished in Bloomberg Compensation Planning Journal, Jan. 5, 2018

“2018 Increases Announced for Retirement Plan Dollar Limits,” Westlaw Journal – Employment, Nov. 8, 2017 (co-author)

“2 New Cases Highlight Scrutiny of University Retirement Plans,” Law360, June 15, 2017 (co-author)

“2017 Retirement Plan Dollar Limits Mostly Remain Flat — So What Can Employers Do To Increase Retirement Readiness?,” Bloomberg BNA, Dec. 12, 2016 (co-author)

“Plan Auditors Ponder New Procedures After Change in Determination Letter Program,” Bloomberg BNA Pension and Benefits Blog, May 6, 2016 (quoted)

“Satisfying the DOL’s Safe Harbor When Using Electronic Technology to Comply with ERISA Disclosure Requirements,” Lexis Practice Advisor, February 2016

“IRS Eliminates Determination Letter Expiration Dates for Employee Benefit Plan Sponsors,” Bloomberg BNA Pension & Benefits Daily, Jan. 8, 2016

“Multiemployer 401(k) Plan Nondiscrimination Testing,” Bloomberg BNA – Benefits Practice Resource Center, June 8, 2015 (co-author)

“IRS Expected to Slash Part of Retirement Plan Determination Letter Process Due to Budget Constraints and Limited Resources,” Bloomberg BNA Pension & Benefits Daily, May 13, 2015

“Fiduciary Tool Kit for Compliance: Common Errors in Qualified and Nonqualified Retirement Plan Administration,” Bloomberg BNA Pension & Benefits Daily, Dec. 27, 2013 (co-author)

“New Privacy Concern For Employee Benefit Plans: Combating Identity Theft,”Compensation & Benefits Review, Feb. 1, 2004 

“Final COBRA Notice Requirements Issued by DOL,” Employee Benefit News published by Thomson Financial, August 2004 (co-author) 

“Distributions from Qualified Plans,“ PLI, July 2003 

“Cash Balance Plans: The Cloud of Uncertainty Continues,” Compensation and Benefits Review, May 2003 

“IRAs” and “SEPs,” chapters in Essential Facts: Pension and Profit Sharing Plans, Warren, Gorham & Lamont, 1996 (co-author)

SRZ Publications

“What Are the Retirement Plan Dollar Limits for 2019?,” SRZ Alert, Nov. 11, 2018 (co-author)

“Tax-Exempt Organizations Face a New 21 Percent Excise Tax on Compensation Paid to Non-Profit Executives in Excess of $1 Million,” SRZ Alert, Jan. 18, 2018 (co-author)

Cybersecurity Risks and Considerations for Plan Sponsors to Protect Employee Benefit Plans,” SRZ Alert, Dec. 19, 2017 (co-author)

“House Tax Reform Bill: Potential Dramatic Changes for U.S. Compensation Arrangements,” SRZ Alert, Nov. 7, 2017 (co-author)

2018 Increases Announced for Retirement Plan Dollar Limits,” SRZ Alert, Oct. 19, 2017 (co-author)

University Retirement Plans Under Scrutiny for Excessive Fees,” SRZ Alert, June 6, 2017 (co-author)

“2017 Retirement Plan Dollar Limits Mostly Remain Flat with Some Increases,” SRZ Alert, Oct. 27, 2016 (co-author)

SRZ Pension and Health Plans: 2015 Year-End Review, February 2016 (co-author)

“Cadillac Tax Officially Delayed to 2020,” SRZ Alert, Dec. 21, 2015 (co-author)

“Retirement Plan Dollar Limits Remain Flat for 2016,” SRZ Alert, Oct. 21, 2015 (co-author)

SRZ Employment & Employee Benefits Developments: New Health Care Compliance Considerations for Employers in 2015, January 2015 (co-author)

“IRS Announces Increased Retirement Plan Dollar Limits for 2015,” SRZ Alert, Oct. 23, 2014 (co-author)

SRZ Employment & Employee Benefits Developments: Health Care Compliance Burdens Continue to Weigh on Employers, Fall 2013 (co-author)

“Supreme Court’s DOMA Decision Sparks Changes in Employee Benefits,” SRZ Alert, July 16, 2013 (co-author)

SRZ Employment & Employee Benefits Developments: 2012 Year-End Health Plan Highlights and Reminders, December 2012 (co-author)

SRZ Employment & Employee Benefits Developments: 2012 Year-End Reminders for Pension Plan Sponsors, December 2012 (co-author)

“Retirement Plan Dollar Limits Increase for 2013,” SRZ Alert, Oct. 19, 2012 (co-author)

“What Do Retirement Plan Sponsors Have to Do Now that the ERISA 408(b)(2) Fee Disclosure Deadline Has Come and Gone?” SRZ Alert, July 2012 (co-author)

“Supreme Court Upholds Landmark Health Care Reform as a Tax,” SRZ Alert, July 10, 2012 (co-author)

SRZ Employment & Employee Benefits Developments: Special Healthcare Reform Issue, Winter 2012 (co-author)

“Qualified Retirement Plan Year-End Reminders,” SRZ Alert, Dec. 9, 2011 (co-author)

“FASB Enhances Disclosure Requirements for Employers Participating in Multiemployer Plans,” SRZ Alert, Nov. 10, 2011 (co-author)

“Retirement Plan Dollar Limits Get a Boost for 2012,” SRZ Alert, Oct. 21, 2011 (co-author)

“The End of the First Five-Year Determination Letter Cycle Is Approaching for Qualified Retirement Plans,” SRZ Alert, June 23, 2011

“Reminder: Cafeteria Plans May Need to be Amended for Health Care Reform Over-the-Counter Drug Requirements,” SRZ Alert, June 6, 2011 (co-author)

“Internal Revenue Code Section 409A: Tax Relief for Non-Compliant Separation Pay Arrangements,” SRZ Alert, Dec. 23, 2010 (co-author)

“2011 Dollar Limits for Retirement Plans,” SRZ Alert, October 2010 SRZ Employment & Employee Benefits Newsletter, Fall 2009

“Supreme Court Clarifies Subrogation Rights for Health Plans,” SRZ Employment & Employee Benefits Developments, Summer 2006 (co-author)

“Multiemployer Pension Funds Can Require Participants to Demonstrate Work Performed Was in Covered Employment,” Employment & Employee Benefits Developments, Summer 2006 (co-author)

“Reminder of HIPAA Privacy Notice Deadline for Group Health Plans,” SRZ Alert, March 2006 (co-author) 

“HIPAA Security Rule Compliance Deadline for Small Health Plans,” SRZ Alert, March 2006 (co-author) 

“Group Health Plans: Notice of Creditable Coverage Due to CMS,” SRZ Alert, March 2006 (co-author) 

“Notice of Creditable Coverage – A New Requirement for Group Health Plans,”SRZ Alert, October 2005 (co-author) 

“New Dollar Limits for Retirement Plans,” SRZ Alert, October 2005 (co-author) 

“Code Section 409A Update,” SRZ Alert, October 2005 (co-author) 

“Federal Court Holds That the EEOC Cannot Reduce Retiree Health Benefits to Coordinate With Medicare Eligibility,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“Final HIPAA Portability Regulations,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“IRS Modifies Cafeteria Plan “Use-It-Or-Lose-It” Rule,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“Medicare Part D New Prescription Drug Program: For Retirees and Plan Sponsors,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“Code Section 409A Update,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“Circular 230 Tax Notice,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“Internal Revenue Service Issues Comprehensive 401(k) and 401(m) Final Regulations,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“IRS Issues Comprehensive 403(b) Proposed Regulations for Tax-Exempt Employers,” SRZ Employment and Employee Benefits Developments, Fall 2005 (co-author) 

“New Notice Requirement and Extended Health Care Continuation Period Under USERRA,” SRZ Alert, April 2005 (co-author) 

“New Second Circuit Guidance on FMLA Retaliation Claims,” SRZ Employment and Employee Benefits Developments, Fall 2004 (co-author) 

“Zubulake v. UBS Warburg: A Cautionary Tale About Civil Discovery In The Electronic Age,” SRZ Employment and Employee Benefits Developments, Fall 2004 (co-author) 

“Employers Beware: Sick Leave Policies That Ask For Medical Diagnoses May Violate The Americans With Disabilities Act,” SRZ Employment and Employee Benefits Developments, Fall 2004 

“Morgan Stanley and the EEOC: It Means More than Money,” SRZ Employment and Employee Benefits Developments, Fall 2004 

“Plaintiff’s Attorneys’ Fees for Discrimination and Whistleblower Cases Now Tax Deductible,” SRZ Employment and Employee Benefits Developments, Fall 2004 (co-author) 

“Proposed Regulations Interpreting USERRA Issued by the Department of Labor,” SRZ Employment and Employee Benefits Developments, Fall 2004 

“New Law Affects Nonqualified Deferred Compensation Plans and Arrangements,” SRZ Employment & Employee Benefits Developments, Fall 2004 (co-author) 

“DOL Issues Safe Harbor Relief for Plan Fiduciaries Handling Automatic Rollovers of Mandatory Distributions,” SRZ Employment & Employee Benefits Developments, Fall 2004 (co-author) 

“The IRS Offers New Guidance on the Anti-Cutback Rule,” SRZ Employment & Employee Benefits Developments, Fall 2004 (co-author) 

“IRS Continues to Re-evaluate Retirement Plan Determination letter Procedures,” SRZ Employment & Employee Benefits Developments, Fall 2004 (co-author) 

“Supreme Court Holds ERISA Preempts State Lawsuits Challenging Health Coverage Decisions,” SRZ Alert, July 2004 (co-author) 

“Proposed Regulations Address COBRA Notice Requirements,” SRZ Alert, January 2004 (co-author) 

“A Plan Administrator Must Ensure Delivery of the SPD to All Plan Participants,”SRZ Employment and Employee Benefits Developments, Summer 2003 (co-author) 

“Medical Malpractice Claims Against HMO Not Preempted by ERISA,” SRZ Employment and Employee Benefits Developments, Summer 2003 

“Supreme Court Sets Limits on Punitive Damages,” SRZ Employment and Employee Benefits Developments, Summer 2003 (co-author) 

“How The HIPAA Privacy Rules Impact Independent Schools,” SRZ Alert, April 2003 (co-author) 

“IRS Relaxes Anti-Cutback Rules,” SRZ Alert, December 2000 (co-author) 

“Women’s Health and Cancer Rights,” SRZ Alert, December 1999 (co-author)

Speaking Engagements

“Tax Bill and Regulatory Updates,” Amalgamated Life, May 2018

“Hot Issues In ERISA,” New York State Bar Association Labor & Employment Law Annual Meeting, January 2018

“Deferred Compensation for Tax-Exempt Employers,” Strafford Structuring Equity and Nonqualified Deferred Compensation Webinar, November 2017

“Health and Welfare Plan Compliance,” New York Law School, October 2017

“What Every Employment Lawyer Should Know About ERISA,” New York State Bar Association Labor & Employment Law Annual Meeting, January 2017

Strafford Structuring Equity Compensation and Nonqualified Deferred Compensation: Achieving Tax and Legal Objectives Webinar, November 2016

“Misclassification of Employees — Litigation and Transactional Issues Across the Employment Spectrum,” Bloomberg BNA Webinar, December 2015

“Eligibility, Coverage, Vesting, Distributions,” Practising Law Institute ERISA: The Evolving World Seminar, August 2015

“Distribution Requirements,” Practising Law Institute ERISA: The Evolving World Seminar, August 2014

Cornell University ILR School ACA and Wellness Programs: At Odds With EEO Laws and Collective Bargaining Agreements?, February 2014

Are You Ready For Health Care Reform?, October 2013

“Distribution Requirements,” Practising Law Institute ERISA: The Evolving World Seminar, August 2013

“Northeast Hedge Fund Benefits Benchmarking Survey Results,” Financial Executives Alliance New York Hedge Fund Quarterly Meeting, May 2013

“Increasing 403(b) Plan Fee Transparency Under New Regulations While Reducing Fiduciary Risk,” SRZ Wake Up Call for Schools, April 2012

“403(b) Plans: Fiduciary Compliance Issues,” New York State Association of Independent Schools Webinar, May 2011

“Distribution Requirements and Taxation,” Practising Law Institute The Evolving World of ERISA: An Introduction Seminar, May 2011

“Keeping up with Pension Reform,” New York State Association of Independent Schools Business Affairs Conference, May 2011

“Distributions from Qualified Plans,” Practising Law Institute ERISA: Nuts and Bolts of Employee Benefit Plans Seminar, June 2010

“Defined Contribution Pension Plans - Investing and Compliance 101,” New York State Association of Independent Schools Business Affairs Conference, May 2010

“Distributions from Qualified Retirement Plans: The Basic Rules,” Practising Law Institute Understanding ERISA: An Introduction to Basic Employee Benefits Seminar, June 2008, June 2007, July 2006, July 2004, July 2003

“Benefits, Health Care & the Workplace,” New York State Bar Association CLE, September 2005

“Final COBRA Notice Requirements Issued by DOL,” New York State Association, Labor and Employment Section Conference, October 2004

“The Impact of HIPAA Privacy on Employers,” Lorman Education Services Seminar, September 2004, September 2003

“Cash Balance Plans: Why the Uproar?,” SRZ Employment and Employee Benefits Seminar, April 2003

Memberships

  • IRS Advisory Committee on Tax Exempt and Government Entities (ACT), 2015-Present
    • Chair, 2017-Present
    • Vice Chair, 2016-2017
  • Strafford Publications Inc. Employment & ERISA Advisory Board, 2015
  • New York City Bar Association, 1994-Present
    • Executive Compensation and Benefits Committee, 2015-Present 
  • New York State Bar Association, 1995-Present
    • Employee Benefit and Compensation Committee, 2004-Present; Co-Chair, 2016-Present
    • Committee on Women in the Law, 2015-Present
  • International Foundation of Employee Benefits, 1998-Present

Distinctions

  • Employee Benefit Adviser’s Most Influential Women in Benefit Advising
  • New York State Bar Association Empire State Counsel Honoree
  • New York Super Lawyers
  • WHEDco Pro Bono Leadership Award