Recent Publications

Employment Tax on Settlement Agreements in ERISA Cases

In addition to the income tax imposed on an employee's income, the Internal Revenue Code of 1986, as amended, also imposes employment taxes equal to a percentage of the portion of an employee's income characterized as wages. >>

HR Magazine Guest Article: Protect Against Derivative ERISA Claims

As a recent "donning and doffing" lawsuit against Perdue Farms shows, derivative doesn't mean unimportant when it comes to Employee Retirement Income Security Act (ERISA) claims. >>



Brian Giovannini

Associate

Houston


1221 McKinney Street
Suite 2100
Houston, Texas 77010
T +1 713.547.2025
F +1 713.236.5428

Areas of Practice

Education

  • J.D., University of Texas at Austin School of Law, 2008, with honors; Board of Advocates; semifinalist 2006 Gardere Novice Mock Trial Competition
  • B.A., University of Houston, 2005, cum laude; (graduated from Honors College)
  • Certificate in Italian Language, Università per Stranieri di Siena, 1994

Bar Admissions

  • Texas, 2008

Court Admissions

  • U.S. Tax Court

Languages

  • English
  • Italian
Brian Giovannini

Brian Giovannini, PHR, is an associate in the Employee Benefits and Executive Compensation Practice Group in the Houston office of Haynes and Boone, LLP. His practice focuses primarily on compliance work for defined benefit plans (e.g., traditional pension plans, cash balance plans and variable annuity plans) and defined contribution plans (e.g., ESOPs, 401(k) plans and 403(b) plans).

Brian is a contributor to Haynes and Boone's Practical Benefits Lawyer blog, which discusses issues and developments in the areas of employee benefits and executive compensation.

Brian regularly counsels clients on administration issues including:

  • Interpreting plan documents
  • Possible tax qualification failures
  • Coverage testing and nondiscrimination testing
  • Prohibited transactions and other fiduciary issues
  • Benefit calculations
  • Participant disputes regarding the distribution or denial of benefits
  • Qualification of domestic relations orders
  • Determining the proper beneficiary
  • Missing participants

In addition, Brian works closely with plan fiduciaries and third party service providers to ensure that plan documents are carefully drafted to meet the business needs of the client. He keeps clients informed of changes in the law and alerts those clients to upcoming deadlines so that plans are timely amended to comply with changes in tax and benefits law. He advises clients regarding discretionary changes (e.g., the addition of retroactive annuity starting dates, changes to death benefits, changes to service crediting, and participation and accrual freezes).

Brian also assists clients in developing supplementary documents and participant communications such as administrative and investment committee charters, plan amendments and resolutions, summary plan documents, summaries of material modifications, QDRO procedures, ERISA section 204(h) notices, plan loan documents, beneficiary designation forms, spousal consent forms, investment policy statements, and annual funding notices. He reviews domestic relations orders and benefit statements and counsels clients on matters of benefit calculation and distribution.

Brian assists clients with government compliance, including filing the annual Form 5500 with the IRS and cyclical determination letter filings. He also helps clients correct plan errors through the IRS Employee Plans Compliance Resolution System.

Brian also assists clients with executive compensation programs including incentive plans, bonus plans, and severance plans, as well as international compensation questions.

Before joining the firm, Brian was a graphic designer and cartoonist.

Selected Client Representations

  • Amended and restated defined benefit, cash balance, ESOP and 401(k) plans to remain compliant with recent changes in federal law including EGTRRA, PPA, WRERA and the HEART Act. Restated plans in conjunction with cyclical determination letter submissions.
  • Assisted clients with correcting multiple plan failures by submission through the Voluntary Correction Program (VCP) established by the IRS. Counseled clients through all steps of the process including determining the proper methods for implementing operational compliance and correcting for past noncompliance. Representative sample of plan failures include participation by ineligible employees, improper plan loan, non-amender, incorrect service-crediting, failure to make the required minimum distributions, and administering the plan using a different benefit formula than in the plan document.
  • Reviewed and amended nonqualified deferred compensation plans to comply with Code Section 409A. Counseled clients on recommendations to retain compliant nonqualified plans and on the process for terminating nonqualified plans.
  • Assisted clients in developing ERISA provisions for multiple credit facilities.
  • Drafted successor defined benefit plan to cover employees acquired as the result of an asset acquisition.
  • Converted defined benefit plan to hybrid cash balance plan.
  • Assisted client in determining the most cost-efficient method for structuring fringe benefit program for expatriates.
  • Assisted client in determining the eligibility of expatriates to participate in tax-qualified deferred compensation programs.
  • Analyzed for legal compliance employment agreements, severance agreements, and top hat plans for executives, officers, and other key employees.
  • Analyzed mandatory arbitration clauses for Texas non-subscribers to Workers Compensation.
  • Analyzed questions relating to common control of multiple employer welfare agreement (MEWA) and the determination of when a MEWA is fully insured.
  • Revised the master trust for voluntary employees' beneficiary association (VEBA).

Recent Publications

  • "Employment Tax on Settlement Agreements in ERISA Cases," Texas Tax Lawyer, Winter 2014, Vol. 41, No. 2.
  • "Protect Against Derivative ERISA Claims," guest author, HR Magazine, January 1, 2014.

Selected Representative Experience


Wood Group E & PF Holdings, Inc. in the Acquisition of Elkhorn Holdings, Inc.
Represented Wood Group E & PF Holdings, Inc. in the acquisition of Elkhorn Holdings, Inc., an S-Corporation which was 100 percent owned by an employee stock ownership plan and trust in its acquisition of all of the common stock pursuant to a purchase of shares and a redemption of shares by the target corporation.

The Guardian Life Insurance Company of America v. Bank of America, N.A., et. al., Southern District of Texas, H-11-0079
Obtained final summary judgment in favor of client, Bank of America, N.A., against claims that the bank was a fiduciary or engaged in a prohibited transaction under ERISA when the bank had automatically swept funds in a customer's account that collateralized an asset-based loan.

Memberships

  • Texas Bar Association (Tax Section)
  • Houston Bar Association
  • Society for Human Resource Management
  • HR Houston

Online Publications

03/24/2014 - Employment Tax on Settlement Agreements in ERISA Cases
In addition to the income tax imposed on an employee's income, the Internal Revenue Code of 1986, as amended, also imposes employment taxes equal to a percentage of the portion of an employee's income characterized as wages.

01/10/2014 - HR Magazine Guest Article: Protect Against Derivative ERISA Claims
As a recent "donning and doffing" lawsuit against Perdue Farms shows, derivative doesn't mean unimportant when it comes to Employee Retirement Income Security Act (ERISA) claims.

12/01/2011 - Tax Benefits and Allocation Issues in Rollovers to Roth IRAs
For taxable years beginning before January 1, 2010, those individuals who stood to benefit most from a 401(k) plan to a Roth IRA rollover - individuals with a modified adjusted gross income exceeding $100,000 - were precluded from making a qualified rollover contribution to a Roth IRA.

05/24/2010 - Health Reform: 2011 Design Considerations
Many employers are already planning revisions to their medical plans for 2011. However, under health reform, if “grandfathered plans” (generally plans with at least one participant on March 23, 2010) make changes in their benefit structure, they may lose “grandfathered” status. This article answers some of employers' most pressing questions.

05/06/2010 - Employers May Offer Coverage of Children up to Age 26 Now
Although healthcare reform does not require group health plans to provide coverage for children up to age 26, without regard to marital or student status, until the first plan year beginning on or after September 23, 2010, many insurers are now offering employers with fully insured plans the opportunity to continue the health coverage of children who would otherwise lose coverage this year. This alert describes how employers with self-insured plans also may provide such coverage to children up to age 26 before it is otherwise legally required.

04/08/2010 - Healthcare Reform: What You Need to Do Now and in the Future
This alert summarizes the major provisions of the Patient Protection and Affordable Care Act (“PPACA”) and the Health Care and Education Reconciliation Act of 2010 (together with the PPACA, the “Act”) that will impact employers and their group health plans (“GHPs”).

03/19/2010 - New Model Notices Reflect Latest Extension of COBRA Subsidy
The Department of Labor issued new model notices that reflect the most recent extension of the COBRA subsidy, which covers involuntary terminations that occur through March 31, 2010. The updated model notices are summarized in this alert.

03/12/2010 - COBRA Subsidy Extension - Déjà vu, but much more…
Once again, Congress has extended the period during which an individual must be involuntarily terminated (as defined for purposes of the COBRA subsidy, an “Invol Term”) to be eligible for the COBRA subsidy. Invol Terms occurring through March 31, 2010 will be eligible for the COBRA subsidy. This change is effective retroactively, so that those persons with an Invol Term on March 1, 2010 are still eligible for the COBRA Subsidy.

02/04/2010 - Deadline for Compliance with the HITECH Act Approaching
The Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”) makes significant changes to the privacy and security requirements of the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”). Group health plans and other covered entities must comply with the HITECH Act by February 17, 2010.

01/29/2010 - DOL Issues Final Safe Harbor Rules for Timely Deposits of Participant Contributions and Loan Repayments
The U.S. Department of Labor (“DOL”) issued final regulations, effective January 14, 2010, that (1) clarify that the contribution timing rules apply to plan loan repayments, and (2) provide a safe harbor for depositing participant contributions (including loan repayments) to employee benefit plans with fewer than 100 participants on the first day of the plan year.

01/28/2010 - IRS Issues 409A Document Correction Program: The Six Month Payment Delay for Key Employees (second in a series)
As described in an earlier alert, the IRS has announced a document correction program covering certain failures to comply with Section 409A of the Internal Revenue Code (“Section 409A”), which contains tax rules for nonqualified deferred compensation arrangements.

01/19/2010 - Model Notices and Additional Guidance Issued on COBRA Subsidy Extension
The Department of Labor recently issued model notices for employers to use under the COBRA subsidy extension, and the Internal Revenue Service issued additional guidance for an employer claiming on its federal employment tax return (Form 941) the credit for 2009 retroactive coverage arising from the subsidy extension for those individuals who had otherwise exhausted the subsidy period.

01/13/2010 - IRS Issues 409A Document Correction Program: Immediate Action May Be Needed
The IRS has issued a Notice that describes a document correction program covering certain failures to comply with Section 409A of the Internal Revenue Code (“409A”). 409A contains tax rules for nonqualified deferred compensation arrangements. While this IRS program offers employers welcome relief from inadvertent drafting mistakes and other failures to conform applicable documents to the requirements of 409A, it also raises some additional concerns.

12/29/2009 - COBRA Subsidy Extended - Prompt Action Required (Updated)
On December 19, 2009, the Department of Defense Appropriations Act of 2010 (the “Act”) extended the COBRA continuation coverage subsidy, which originally was due to expire at the end of 2009. While the mechanics of the COBRA subsidy generally remain unchanged, the Act expands the coverage previously provided under the COBRA subsidy.

12/08/2009 - Year-End Changes Needed for Some 162(m) Performance-Based Compensation Plans
Publicly held corporations may need to adopt an amendment by December 31, 2009 for certain performance-based compensation plans and agreements, including incentive compensation and equity plans and executive employment agreements.

12/07/2009 - There's Still Time! Correct Code Section 409A Violations By December 31, 2009
Employers have until December 31, 2009 to take advantage of opportunities to avoid the 20% and other penalty taxes that otherwise would be imposed by Section 409A of the Internal Revenue Code. We recommend employers review all their plans and agreements that are subject to Section 409A, including nonqualified deferred compensation, severance, change of control plans and agreements, and employment agreements.

10/28/2009 - IRS Provides Guidance on Waiving 2009 Required Minimum Distributions
In Notice 2009-82, the IRS announced that plan sponsors must make decisions relating to the waiver of 2009 required minimum distributions (“RMDs”) for defined contribution plans, such as 401(k) plans, by November 30, 2009.

10/13/2009 - IRS Issues Final Regulations on Defined Benefit Plan Funding Requirements and Benefit Restrictions
Last week the IRS released final regulations covering most aspects of the minimum funding requirements and funding-based benefit restrictions imposed on single-employer defined benefit plans by the Pension Protection Act of 2006. These regulations generally apply for plan years beginning on or after January 1, 2010, but can be relied upon before that date. Some plan sponsors may need to take immediate action in light of the regulations.

09/18/2009 - New Health Plan Privacy Notice Requirements Under HITECH Act
The Department of Health and Human Services (“HHS”) recently issued an interim final rule (the “Rule”) under the Health Information Technology for Economic and Clinical Health (“HITECH”) Act explaining the notification requirements for breaches of protected health information that has not been encrypted or destroyed (“Unsecured PHI”). Employer-sponsored health plans should immediately review and revise their HIPAA privacy policies and procedures to ensure that they adequately address the Rule’s requirements for investigating and reporting breaches of Unsecured PHI. The new requirements are effective for breaches occurring on or after September 23, 2009.

08/14/2009 - Employers Should Be on the Lookout for Common Retirement Plan Errors
The Internal Revenue Service recently published a list of common recurring mistakes it sees in large case audits of qualified retirement plans and in submissions under its Voluntary Correction Program. This list provides employers with a useful checklist for reviewing the operations of their qualified retirement plans.

05/20/2009 - Deadline for Complying with Medicare Secondary Payer Reporting Rules Approaching
This alert outlines new reporting requirements under the Medicare Secondary Payer rules that apply to all liability insurance plans (including self-insurance), no-fault insurance plans, and workers' compensation plans, including non-subscribers to the Texas Workers' Compensation Act beginning on July 1, 2009.

04/16/2009 - Proceed with Caution - New COBRA Subsidy Notices Pose Risks to Employers
Employers are working frantically to comply with the new COBRA subsidy requirements of the American Recovery and Reinvestment Act of 2009 (the “Act”). However, the rush to compliance poses significant dangers if employers rely on the guidance issued by the Internal Revenue Service and Department of Labor without careful review and use the Department of Labor sample notices without modification.

03/27/2009 - Significant Changes in the Health Data Privacy for Group Health Plans and their Business Associates
The American Recovery and Reinvestment Act of 2009 (the “Act”) broadens the HIPAA privacy and security protections that apply to protected health information (“PHI”) and imposes new requirements on group health plans and their business associates. Under the Act, certain HIPAA privacy and security requirements now directly apply to business associates as if they were covered entities.

02/19/2009 - Stimulus Bill Expands COBRA Benefits
The “Stimulus Bill,” signed Tuesday February 17, 2009, lowered the cost of COBRA continuation coverage for employees whose employment was or is involuntarily terminated on or after September 1, 2008 and before January 1, 2010, and their eligible dependents (together referred to as “Assistance Eligible Individuals”). In addition, those Assistance Eligible Individuals who did not timely elect COBRA are given another opportunity to elect that coverage, although their total period of COBRA coverage generally is not extended.