Scott E. Galbreath

Scott E. Galbreath leads the Employee Benefits and Executive Compensation Practice Team. He has more than 30 years of experience representing employers in ERISA, employee benefits, and executive compensation matters. Scott also practices in the areas of tax, business and nonprofit law.

Scott’s benefits practice includes counseling for-profit, tax exempt and governmental clients on all aspects of employee benefits: choosing appropriate retirement, deferred compensation, equity compensation, cafeteria and other health and welfare benefit plans; using benefits to attract and retain key executive and management employees; using benefits (including ESOPs), in succession planning; ERISA, Internal Revenue Code section 401(a), 403(b), 409A and 457 compliance; CalPERS and PEPRA compliance; investments, prohibited transactions, and fiduciary duties; multiemployer plan funding and withdrawal liability rules; as well as drafting plan documents and correcting plan operational or document failures, and representing clients in IRS audits or Department of Labor investigations. Scott also consults with attorneys involved in litigation or alternative dispute resolution on ERISA and employee benefits aspects of their case and can serve as an expert witness.

Scott was awarded his J.D. from IIT Chicago-Kent College of Law and also earned an LL.M in Taxation, with honors, from IIT Chicago-Kent College of Law.  He has earned his certification as a specialist in Taxation Law by the State Bar of California Board of Legal Specialization. He was recognized as an Illinois Leading Lawyer in Employee Benefits in 2006 by the Leading Lawyer Network. Scott is a former officer of the Chicago Bar Association’s Employee Benefits Committee and former Chair of its Executive Compensation Subcommittee.

After practicing for 20 years in Chicago, Scott moved to California where he has served as Chair of the Sacramento County Bar Association’s Tax Section as well as President of the Sacramento Chapter of the Western Pension & Benefits Council. He has also served as a member of the Executive Committee of the Governing Board of the Western Pension & Benefits Council and as a board member of the Sacramento Chapter of the National Institute of Pension Administrators. He is currently the President of the Chapter.

Scott is a Fellow of the American College of Employee Benefits Counsel. Selection as a Fellow reflects the Board’s judgment that a nominee has made significant contributions to the advancement of the employee benefits field. Fellows are selected by the College’s Board of Governors from among employee benefits attorneys nominated for that honor and recommended for consideration by the Board’s Membership Committee after considering the recommendations of regional screening committees.

Scott is a frequent writer and speaker on new developments in employee benefits. In September 2007, he helped organize, spoke at and moderated the first annual Executive Compensation Institute sponsored by the Chicago Bar Association and the John Marshall Law School. He was also instrumental in helping to establish the Capital Forum on Pensions, the Sacramento area’s annual employee benefits conference established in 2013. He is also a regular contributor to the Journal of Pension Benefits published by Wolters Kluwer and the author of Murphy Austin’s The Benefit of Benefits blog, which is an online resource for information and commentary on new legislative, regulatory, and industry developments in employee benefits and executive compensation.

Scott was named a Top Lawyer for Employee Benefits (2015-2017 and 2020-2022) and a Top Lawyer for Tax (2021) in the lists published by Sacramento Magazine. He was also named a Super Lawyer in Northern California Super Lawyers 2021-2022 for excellence in employee benefits law. Scott is recognized by Martindale-Hubbell as an AV Preeminent Peer Review Rated lawyer.

Representative Matters

• Saved the qualified status of a 401(k) plan that had not been amended for over 20 years through the IRS Voluntary Correction Program.
• Designed executive compensation program involving restricted equity interests and a captive insurance company.
• Negotiated a voluntary closing agreement with IRS, unwinding a Rollover for Business Start-Up (ROBS) transaction with minimal tax consequences to taxpayer.
• Advised 501(c)(3) organization’s board on operational issues threatening exempt status and assisted in implementing changes to reduce risk.
• Structured joint venture among three 501(c)(3) organizations to develop a public school curriculum to educate youth about risks and avoidance of a particular social issue.
• Regularly draft, review, and revise executive compensation agreements, employment agreements, and severance arrangements for compliance under Code section 409A.
• Regularly advise clients on avoiding prohibited transactions when using self-directed IRAs to invest in alternative investments, businesses, and real estate.
• Regularly form nonprofit corporations and obtain necessary federal and state recognition of tax exempt status.
• Regularly advise tax exempt organizations on whether activities give rise to unrelated business income tax and how to restructure transactions to avoid such tax.

Speaking Engagements

• “CalSavers Is Here To Stay, What You Need To Know,” Co-presenter, Yuba-Sutter Chamber of Commerce Webinar (June 23, 2021)
• “ERISA And The Supreme Court?” National Institute of Pension Administration NAFE Amplified 2.0 Webinar (May 19, 2021)
• “CalSavers Is Here To Stay, What You Need To Know,” Estate Planning Professionals of Yuba-Sutter Webinar (May 18, 2021)
• “Murphy Austin’s Annual Benefits Update Webinar,” (April 28, 2021)
• “The Multi-Personality 457 Plan,” Nexus Administrators training webinar (April 20, 2021)
• “Virtual Fundraising: What You Can and Can’t Do Regarding Contributions, Raffles, Auctions, Bingo, Commercial Co-Ventures, and Other Fundraising Techniques,” Virtual Workshop, Impact Foundry (April 13, 2021)
• Annual Legislative & Regulatory Update Part Two, Webinar for Western Pension & Benefits Sacramento Chapter (March 24, 2021)
• Retirement Plans Update:  SECURE Act, CARES and CalSavers, Webinar for SAHU, the Sacramento chapter of the California Association of Health Underwriters (March 17, 2021)
• Panelist, Practitioner Panel,  2021 Joint TE/GE Council Annual Meeting held virtually via Zoom, discussing issues with applying the seven factors of significance for operational failures in retirement plans under the EPCRS Self Correction Program (February 26, 2021)
• “Ethics: Doing the Right Thing Because it is the Right Thing to Do…According to the Rules,” Webinar for Western Pension & Benefits Council Governing Board (December 7, 2020)
• “Will Anything Be New in Washington After the Election?” WP&BC Portland Chapter Online Webinar in Collaboration with the WP&BC Sacramento Chapter (November 17, 2020)
• “ERISA Goes to the Supreme Court—An Analysis of Recent Supreme Court Decisions and Pending Cases,” Western Pension & Benefits Council Governing Board (August 27, 2020)
• “Retirement Plans Update: SECURE Act, Supreme Court Cases, and CalSavers,” Session at PWA Insurance Services HR and Compliance Virtual Conference (July 22, 2020)
• “Murphy Austin 2020 Benefits Update Lunch Seminar,” Sacramento (March 4, 2020)
• “The Top 3 Legal Issues for Nonprofits in 2020, so far: AB5, Retirement Plans and Fundraising” Workshop for The Impact Foundry’s WHAT IF Conference, Presenter (February 2020)
• “Annual Legislative and Regulatory Update,” Co-Presenter, Sacramento Chapter of Western Pension & Benefits Council and National Institute of Pension Administrators Joint Meeting (January 29, 2020)
• “CalSavers Is Here, Ready or Not,” Co-Presenter, Gold Country Estate Planning Council (November 2019)
• “Legal Pitfalls of Raffles, Auctions, Commercial Co-Ventures and Other Fundraising Techniques,” The Impact Foundry Workshop (October 2019)
• “Don’t Be Robbed By A ROBS Transaction: What Could Go Wrong and How To Fix It,” Professional Mentoring Forum (August 2019)
• “CalSavers, RMDs, and Plan Correction,” National Institute of Pension Administrators, San Joaquin Valley Chapter (June 2019)
• “CalSavers Is Here, Are You Ready,” Capital Forum on Pensions 2019 Workshop with Bill Sokol, Scott E. Galbreath and Aaron Karr (June 2019)
• “Murphy Austin Annual Employment Law Update,” Sacramento, Panelist (January 2019)
• “How Will Tax Reform Impact My Executive Compensation Programs?” National Institute of Pension Administration NAFE Forum & Expo, Las Vegas (May 22, 2018)
• “CalSavers: If You Don’t Have a Retirement Plan, One Will Be Provided For You,” Capital Forum on Pensions 2018 Workshop with Gary Allen, Scott E. Galbreath and Aaron Karr (May 16, 2018)
• “The Effects of New Tax Act on Nonprofits—What You Need to Know Now,” The Impact Foundry Workshop (March 2018)
• “457, 401(k), & 403(b) Plans: Which is right for your client’s organization?” Sacramento Chapter of National Institute of Pension Administrators, Co-Presenter (March 2018)
• “Tax Cut and Jobs Act Provisions Effecting Employee Benefits and Executive Compensation,” Sacramento County Bar Association Tax Section (February 26, 2018)
• “What’s Happening with Legislation and Regulations?  Get the Latest Updates!,” Co-Presenter, Sacramento Chapter of Western Pension & Benefits Council and National Institute of Pension Administrators Joint Meeting (January 25, 2018)
• “Tax Reform Effects On Employee Benefits and Executive Compensation,” Sacramento Association of Corporate Counsel (January 25, 2018)
• “Murphy Austin Annual Employment Law Update,” Sacramento, Panelist (December 2017)
• “Retirement Plan Issues for Tax-Exempt Organizations,” Workshop for The Impact Foundry’s WHAT IF Conference, Presenter (October 2017)
• “457, 401(k), & 403(b) Plans: Which is right for your client’s organization?” Western Pension and Benefits Council, Governing Board Webinar, Co-Presenter (June 2017)
• HR Legalcast Podcast – Hot topics in employee benefits, Aaron B. Silva in conversation with Scott E. Galbreath (June 2017)
• “Taxes for Tax-Exempt Organizations: An Introduction to the Unrelated Business Income Tax,” SCBA Tax Section (April 2017)
• “457, 401(k), & 403(b) Plans: Which is right for your client’s organization?” Western Pension and Benefits Council, Sacramento Chapter, Co-Presenter (April 2017)
• “The Final? DOL Fiduciary Regulations-an overview of the final regulations and the pending litigation challenging them,” National Institute of Pension Administrators, Sacramento Chapter (August 2016)
• “Mission Possible?  Correcting Common and Not-So-Common Plan Failures,” Capital Forum on Pensions, Sacramento, Co-Presenter (May 2016)
• “Real Property in Retirement Plans, the Good, the Bad, and the Ugly,” SCBA Tax and Real Property Sections (April 2016)
• “The Numerology of ERISA Fiduciaries: 3(21), 3(16), and 3(38)-What Does Your Future Hold?” National Institute of Pension Administrators, Sacramento Chapter (March 2016)
• “ACA Practical Choices For Employers,” Western Benefits Conference, San Francisco (July 2015)
• “Using Benefits To Compensate Key Management & In Succession Planning,” Sacramento County Bar Association Tax Section Tax Symposium (May 2015)
• “When and Why To Use Nonqualified Plans,” Capital Forum on Pensions, Sacramento (May 2015)
• “Mission Impossible?  How To Correct The Uncorrectable-Fixing Plan Issues That Don’t Qualify For EPCRS,” Capital Forum On Pensions, Co-Presenter (May 2015)
• “A Comparison of the Advantages and Disadvantages of Pre-tax and Post-tax Deferred Compensation in Employee Benefits Plans,” Sacramento County Bar Association Tax Section Tax Symposium (May 2014)

Publications

• Important Reminder: CalSavers Applies to Employers with More than Five Employees in 2022, Employment Law News, Q1, Volume 2, Issue 1, January 20, 2022
• Employers Must Act Now On April 1 COBRA Subsidy Period, Employment Law News, Q2, April 21, 2021
• August 31 Important Date for Additional COVID-19 Relief for Retirement Plans, Part 2, July 20, 2020
• August 31 Important Date for Additional COVID-19 Relief for Retirement Plans, Part 1, July 17, 2020
• COVID-19 Effects on Retirement Plans You May Not Be Aware Of,  April 9, 2020.
• Retirement Plan Provisions of CARES Act, April 2, 2020.
• In-Service Distributions, Hardship Distributions, and Loans from Retirement Plans, March 24, 2020.
• Expanded IRS Self-Correction Program Helps Avoid Increased User Fees for VCP, Still Has Risks, Bloomberg Tax, Tax Management Compensation Planning Journal, July 2019.
• Can a State Mandate an Employee to Act Voluntarily?—The Saga of State-Mandated Payroll Deduction IRA Programs, Journal of Pension Benefits, Autumn, 2018.
• Using Deferred Compensation Techniques To Meet Your Business Needs, BFBA Industry Insights, September 21, 2018.
• Ay, Ay, Ay, How Do You COMPLY WITH SECTION 83(1)–To Obtain Tax Deferrals on Qualified Equity Grants, Journal of Pension Benefits, Summer, 2018.
• House Passes Its Tax Bill Without Deferred Compensation Changes; Senate Bill Also Drops Those Changes But Repeals Individual Health Coverage Mandate, November 2017.
• What will the Tax Reform Bill Mean for Employee Benefits: 401(k) Plans Untouched in House Tax Reform Bill but Executive Compensation May Drastically Change, November 2017.
• Choosing the Right Plan and Design for a Tax Exempt Organization or State and Local Government Requires Knowing the Rules and Motivation, New York University Review of Employee Benefits and Executive Compensation – 2017, chapter 1 (Kathryn Kennedy ed., LexisNexis Matthew Bender 2017)
• “IRS Clarifies Aspects of 409A Regulations,” Journal of Pension Benefits, Winter, 2017
• Galbreath, Scott. Interview. “Proposed regulations clarify, modify previous guidance on deferred compensation plans,” Business & Legal Resources, October 2016. Print.
• “Does One Need to Have Substantial Influence to Select a Top Hat?”  Journal of Pension Benefits, Summer, 2016.
• “Howdy Partner!—Compensatory Equity Interests in Entities Taxed as Partnerships Transforms Employees to Partners—Tax Reform Proposals Don’t Resolve Issue,” Journal of Pension Benefits, Winter, 2015.
• “Reforming Public Pension Reform”, California Labor & Employment Review, Official Publication of the State Bar of California Labor and Employment Law Section, July 2013.

The Benefit of Benefits Blog Articles

• SECURE 2.0 Provisions Encouraging Employers to Adopt A Plan, January 25, 2023
• SECURE 2.0 Requires Auto-Enrollment, Auto-Escalation For Most New Plans, January 20, 2023
• SECURE 2.0 Changes Specific to Plans of Tax-Exempt Organizations, January 18, 2023
• SECURE 2.0 Is Too Big For One Post, January 10, 2023
• Recent Complaint Emphasizes Sponsor’s Need To Monitor Recordkeeping Fees, December 23, 2022
• Study Shows The Need For Nonqualified Plans To Attract And Retain Talent, December 9, 2022
• Tax Exempt Organizations Must Amend 457(b) Plans By December 31 For Increased RMD Age, December 1, 2022
• Mental Health Matters Act Would Increase ERISA Litigation By Changing Administrator Discretion and Arbitration Provisions, November 1, 2022
• Inflation Reduction Act Means Employers Should Review Benefits Plans Now For Compliance,  September 6, 2022
• CalSavers Threshold Number of Employees to Drop to One, August 29, 2022.
• Notice 2022-23 Does Not Extend Deadline For Adopting Amendments to Plans for All CARES Act Provisions: Loan and In-Service Withdrawal Provisions Excluded, August 19, 2022.
• Fidelity’s Bitcoin Policy Questioned Directly By Senators, July 27, 2022.
• Crypto Provider Fights Back Against DOL Warning Guidance, June 14, 2022.
• As Latest CalSavers Deadline Approaches, Some Thoughts On Its Possible Effect, June 10, 2022.
• Why Would Anyone Invest In Crypto Through A Retirement Plan?, May 14, 2022.
• Ninth Circuit Applies Hughes v. Northwestern Supreme Court Standard In Overturning 2 Motion To Dismiss Cases-Or Did They?, April 15, 2022.
• CalSavers Is Here To Stay As Supreme Court Refuses To Hear ERISA Challenge, March 2, 2022.
• Justices Make Short Work Of Northwestern University’s Fiduciary Defense, January 24, 2022.
• CalSavers Begins Assessing Penalties-Threshold Number Of Employees Drops To 5 on June 30, January 18, 2022.
• Happy New Year! Supreme Court Expected To Be Busy With ERISA Again In 2022, January 9, 2022.
• Inflation Adjusted Plan Limits Reiterate Advantages of Employer Plan Over CalSAVERS; Supremes May Accept Preemption Challenge, November 5, 2021.
• Mandated Retirement Plans And Mega IRA Restrictions Among Retirement Proposals Falling Victim To Compromises in Budget Bill, October 28, 2021.
• Biden Administration’s DOL Proposes Changes to Trump Administrations ESG Rules, October 18, 2021.
• Ways & Means Committee Says You Must Save For Retirement, But Not Too Much, September 21, 2021.
• Could CalSavers Go National? Federal Mandated Payroll Deduction Plan Proposal Included In 3.5 Trillion Budget Proposal, September 14, 2021.
• IRS Revamps EPCRS: Expands SCP; Eliminates Anonymous VCP Submissions; Expands Overpayment Safe Harbor to DB Plans, July 19, 2021.
• Supremes Uphold ACA Again! Find Challengers Lacked Standing, June 17, 2021.
• Ninth Circuit Holds CalSavers Is Not Preempted By ERISA. . . 6/30 Deadline Approaching, May 15, 2021.
• No Fooling: Employers Must Act Now On April 1 COBRA Subsidy Period, April 19, 2021.
• New President, New Hope, New ESG Policy. . . Maybe, March 1, 2021.
• Will DOL Withdrawing Support Doom Revival Of ERISA Challenge To CalSavers? February 8, 2021.
• It’s Going To Be A PEPPY New Year! December 14, 2020.
• Could Severability Be The Treat That Foils Senate Republican’s ACA Supreme Court Trick? October 27, 2020.
• Death of RBG Could be Death of ACA, September 20, 2020.
• California Rideshare Companies At The Intersection Of AB5 and Proposition 22, August 24, 2020.
• August 31 Important Date for Additional COVID-19 Relief for Retirement Plans, July 16, 2020.
• Supremes Look At Little Sisters Again-Uphold Trump Administration on ACA Birth Control Exception, July 9, 2020.
• COVID-19 EFFECTS ON EXECUTIVE COMPENSATION OF PRIVATE COMPANIES-PART 3: CARES Act/CESA Main Street Loan Restrictions on Compensation, July 1, 2020.
• SCOTUS: No Damage, No Standing For DB Participants, June 2, 2020.
• COVID-19 Effects on Executive Compensation of Private Companies – PART 2: Deferred Compensation, May 27, 2020.
• COVID-19 Effects on Executive Compensation of Private Companies – PART 1, May 7, 2020.
• CalSavers Proposes Extending 6/30/20 Deadline Due To Pandemic, April 17, 2020.
• No Fooling HJTA Appeals Dismissal Of CalSavers Preemption Decision, April 7, 2020.
• CARES Act Signed by President: Permits COVID-19 Withdrawals and Loans From Plans, March 29, 2020.
• COVID-19 Disaster Declarations Permit Employees Access to Hardship Distributions, March 27, 2020.
• CalSavers Not Preempted By ERISA!, March 10, 2020.
• “Actual” Actually Means “Actual” When It Comes To Knowledge Say Supremes, February 28, 2020.
• Supremes: You Can’t Hurry Love Or Constitutionality of ACA, January 22, 2020.
• One More ERISA Supreme Court Case But Also One Less, January 15, 2020.
• And The Winner For Best Depiction of Why We Need ERISA Goes To. . . “The Irishman,” January 6, 2020.
• 2020 Appropriations Bill Secures More Than Keeping Government Open—Includes Major Retirement Law Changes from SECURE Act, December 22, 2019.
• Great-West Should Give Thanks SCOTUS Declines To Hear Teets Case, December 2, 2019.
• Supreme Court to Decide 3 Cases on Ability to Sue Under ERISA, October 21, 2019.
• Friday the 13th Unlucky for CalSavers as U.S. Maintains Law is Preempted by ERISA, September 16, 2019.
• U.S. Asks California Court to Delay CalSavers Decision Again, September 3, 2019.
• Voluntary Closing Agreements—The Non-EPCRS Correction Program Webinar, August 16, 2019.
• CalSavers on Radar of Justice Department, August 6, 2019.
• A More In-Depth Look At The Expansion Of Self-Correction Under EPCRS, July 15, 2019.
• In 21st Century We May Not Have Hoverboards But We Have Electronic Top Hats, July 1, 2019.
• CalSavers Moves to Dismiss Amended Complaint Challenging Program under ERISA, June 3, 2019.
• How to Take Advantage of the IRS Expanded Self-Correction Program, May 20, 2019.
• HJTA Files Amended Complaint Challenging CalSavers Program, April 23, 2019.
• CalSavers Saved From ERISA Preemption By District Court, March 29, 2019.
• Did Mueller Report Fuel ACA Fight?, March 27, 2019.
• Meter Expiring On Important Election Regarding Tax Consequences Of Reserved Employee Parking, March 19, 2019.
• Loophole For State University Coaches Excess Compensation Is A Congressional Fumble, February 26, 2019.
• Hardship Proposed Regulations Require Thought About Plan Design, January 24, 2019.
• Section 83(i) Guidance Welcomed But Creates Even More Complexity, December 17, 2018.
• Reminder: Qualified and Nonqualified Plans Must Be Amended for New Disability Claims Procedures, November 29, 2018.
• A More Detailed Look At Section 83(i) Plans, November 8, 2018.
• Oops!… They Did It Again–Secure Choice Board Withdraws/Re-Proposes Regs…Again, November 2, 2018.
• CalSavers Files Emergency Proposed Regulations Twice, October 23, 2018.
• Presidential Order Signals Relaxing of Restrictions on Open Multiple Employer Plans, September 5, 2018.
• IRS Approves New 401(k) Plan Design to Substitute Student Loan Repayments for Elective Contributions, August 20, 2018.
• A Much More SIMPLE Approach to Increase Retirement Savings, July 20, 2018.
• Suit Claims CalSavers is Preempted by ERISA,  June 21, 2018.
• Boom goes the Dynamex! Worker Classification is not as easy as ABC when it comes to Benefits, May 14, 2018.
• Documents! Documents! Documents!, April 26, 2018.
• California Secure Choice/CalSavers Retirement Savings Program Proposed Regulations Delayed, April 23, 2018.
• No Fooling: New Disability Claims Procedures are Effective April 1, 2018, March 28, 2018.
• Plan Mistakes are Now More Costly to Correct, March 15, 2018.

• AV® Preeminent™ Peer Review Rating from Martindale-Hubbell (2021 to Present)
• Listed in Northern California Super Lawyers, Employee Benefits (2021-2022)
• Named in Sacramento Magazine’s Top Lawyers List, Employee Benefits (2015-2017, 2020-2022)
• Named in Sacramento Magazine’s Top Lawyers List, Tax (2021)
• Fellow of the American College of Employee Benefits Counsel (2018)
• Recognized as an Illinois Leading Lawyer in Employee Benefits by Leading Lawyer Network (2007)
• IIT Chicago-Kent College of Law Bar & Gavel Society Award (1986)