Michelle McCarthy

Michelle McCarthy advises clients of all types – from tax exempt organizations and governmental plans to Fortune 100 companies – regarding every facet of employee benefits law, including the design, structure, implementation, regulatory compliance and administration of retirement, health and welfare benefit plans. With nearly 25 years of legal experience specializing in employee benefits and taxation, Michelle advises clients from both the private and public sectors and has served as trustee-appointed counsel to some of the largest and highest-profile pension, health and welfare funds in the nation.

Specific to governmental plans, Michelle advises on matters pertaining to federal tax qualification and compliance (including defined benefit, defined contribution, hybrid, cash balance and 457 plans), fiduciary duties and governance, federal and state tax withholding and reporting and health and welfare plans. Michelle’s experience serving as outside tax counsel to public retirement systems includes advice on tax compliance matters related to missed required minimum distributions, correction of overpayments and underpaid contributions, error correction policies and procedures, federal, state and local tax withholding and reporting issues, potential impact on state and local public retirement systems of Congressionally mandated Social Security on newly hired state and local governmental employees, FICA replacement plans, governmental pick-up contributions, participation agreements, error correction policies and procedures, expanded ability to self-correct operational errors under SECURE 2.0, trust certification requirements, assessment of property tax, possessory interest tax and government “in-lieu” fees on real property investments by state and local public retirement systems and fiduciary duties, among other things.

Michelle frequently assists governmental plans in the development and drafting of internal policies and procedures, member notices and communications and statutory and regulatory amendments required to remain compliant with federal tax laws and regulations. Michelle has represented state and local public retirement systems in matters before the Internal Revenue Service (IRS), including in requests for determination letters, private letter rulings and compliance statements and frequently assists these clients in self-correcting operational errors under the IRS’ Employee Plans Compliance Resolution System (EPCRS), as expanded under SECURE 2.0.

In addition, Michelle has vast experience advising public pension systems, state and local governments and governmental agencies, multiemployer health plans and private plan sponsors on matters related to the design, establishment and ongoing administration of group health plans (including self-funded major medical, dental and vision plans, FSAs and HRAs (both excepted benefit and integrated)). Michelle’s experience includes advising on all aspects of group health plan compliance, including but not limited to the Patient Protection and Affordable Care Act of 2010 (ACA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH), the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA), the Genetic Information Nondiscrimination Act (GINA), the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA) and the Servicemembers Civil Relief Act (SCRA), among other things.

Michelle frequently advises plan sponsors and administrators on issues pertaining to plan governance, administration and compliance, has represented numerous of her clients in matters before the IRS (including in IRS audits and examinations) and has helped clients to obtain determination letters, private letter rulings, closing agreements and compliance statements with respect to corrective filings under EPCRS. Michelle also has represented numerous clients in matters before the Department of Labor (DOL) and Pension Benefit Guarantee Corporation (PGBC) (including audits, examinations and corrective programs) and regularly advises on data privacy and cybersecurity issues relevant to retirement, health and welfare plans.

Michelle also has had a strong focus on benefits issues arising for Taft-Hartley multiemployer plans throughout her career, serving as management-appointed fund counsel to numerous multiemployer plans and advising boards of trustees on multiemployer plan governance, administration and compliance issues. She has represented numerous of her multiemployer plan clients in matters before the IRS, DOL, Social Security Administration (SSA) and PBGC, including in audits, examinations and voluntary compliance program (VCP) filings. In addition, Michelle advises contributing employers regarding their participation in multiemployer health and pension plans and provides corporate transaction support on multiemployer plan issues, including potential withdrawal liability.

In addition to the numerous publications she has authored, Michelle frequently speaks on employee benefits and tax compliance issues at conferences sponsored by the International Foundation of Employee Benefit Plans, the American Bar Association, the National Association of Public Pension Attorneys, the State Association of County Retirement Systems, the National Conference on Public Employee Retirement Systems, the California Association of Public Retirement Systems, the Los Angeles County Bar Association, the Beverly Hills Bar Association, the California Society of Certified Public Accountants and Lorman, among others.

Experience

• Advised public pension system boards and worked with system staff on issues related to employee and employer contributions, FICA replacement plans, the elimination of the Windfall Elimination Provision (WEP) and Government Pension Offset (GPO), and the impact existing proposals before Congress, which would mandate Social Security coverage for newly hired state and local governmental employees, will have on the public pension system and current system members.
• Advised public pension systems’ staff and boards regarding the impact of Section 301 of the SECURE 2.0 Act, IRS interim guidance, and state legislative developments on the public pension systems’ overpayment correction procedures and worked with public pension system staff to amend systems’ error correction policies and procedures to incorporate changes under section 414(aa) of the IRC, IRS interim guidance, and state statute.
• Advised multiple California-based public pension systems on compliance with the new RMD requirements under the SECURE and SECURE 2.0 Acts and assisted in the development of the systems’ internal policies and procedures and tax notices to members to comply with the new minimum distribution requirements under the final section 401(a)(9) regulations.
• Advised public pension systems’ staff and boards on return to work and suspension of benefit rules.
• Advised public pension systems’ staff and boards on tax withholding, reporting and remittance requirements, rollovers, and trust-to-trust asset transfers.
• Advised public pension systems’ staff on trust certification requirements under the IRC and applicable Treasury Regulations.
• Reviewed employee leasing arrangements and plan sponsor participation agreements for public pension systems.
• Trained and briefed public pension systems’ boards, local officials, state office holders, and legislative staff on compliance issues and matters relevant to a plan's qualified status.
• Advised an association of governmental employers in the development and design of a benefit plan to provide health benefits to their employees.
• Provided Benefits Counsel training for public pension systems.
• Provided counsel and advice regarding the administration of a disability benefit claims.
• Advised large multinational private sector employer with more than 200,000 U.S.-based employees on issues related to the administration, management and oversight of its defined contribution, defined benefit, health and welfare, vacation, and severance plans with ERISA and the IRC, represented the employer in the submission of a VCP application with the IRS and voluntary fiduciary correction program (VFCP) application with the DOL, assisted in the redesign and amendment of its defined contribution, health, vacation and severance plans, represented the employer in a matter before the DOL, provided fiduciary trainings, and assisted with the termination and use of excess assets held in a Voluntary Employee Benefits Association (VEBA) so as to avoid income and excise taxes.
• Advised an association of governmental employers in the development and design of a benefit plan to provide health benefits to their employees. Advised governmental plans on federal tax withholding and reporting obligations, Social Security coverage of members, FICA replacement plan requirements, the windfall elimination and governmental pension offset provisions.
• Assisted a number of governmental plans in the development and drafting of internal policies and procedures, member notices and communications, and statutory and regulatory amendments required in order to remain compliant with federal tax laws and regulations.
• Represented governmental plans before the IRS in requests for determination letter requests and compliance statements under EPCRS.
• Advised Boards for largest, highest-profile U.S. media and entertainment multiemployer pension and health plans on fiduciary and governance issues, including conducted new fiduciary trainings, as well as drafted and revised Boards’ codes of fiduciary conduct and plans’ internal fiduciary, governance and administrative policies and procedures.
• Served as lead counsel in confidential ERISA-based DOL investigation of large multiemployer plan involving fiduciary breaches, VEBA registrations and propriety of investments.
• Served as lead counsel in the representation of two large multiemployer funds in connection with a major DOL investigation that involved analysis of the plan sponsor’s governance activities, the propriety of payments made to beneficiaries under the plan, the retention of executive staff, investment managers, recordkeepers and other vendors, as well as the appropriateness of fees charged by those entities.
• Served as lead counsel in the representation of a large multiemployer health and welfare fund in connection with a DOL investigation of allegations related to plan governance. This matter involved questions of plan registration protocols and ensuing financial responsibility of plan fiduciaries.
• Served as lead counsel in the representation of a large multiemployer health and welfare fund in connection with a DOL investigation concerning allegations of fiduciary breaches related to COVID-19 expense reimbursements and plan’s alleged failure to comply with the MHPAEA.
• Represented the largest and highest-profile U.S. media and entertainment multiemployer health fund in merger negotiations with another high-profile multiemployer health fund. Prepared merger documents, resulting multiemployer health plan document and summary plan description, participant communications regarding merger and new health plan policies and procedures. Assisted plan staff with compliance issues arising from health plan merger.
• Represented multiemployer health plan in negotiations with the Centers for Medicare & Medicaid Services, related to plan’s interpretation of Medicare Secondary Payer Rules.
• Prepared Non-Quantitative Treatment Limitation Analyses report for large multiemployer health plan.
• Represented an employer association in the maritime industry, in the negotiation, drafting, implementation and amendment of a multiemployer paid sick leave plan, benefiting over 30,000 union members up and down the coast. Preparation of the tax exemption application for the associated VEBA.
• Represented a multiemployer plan trust in an ERISA litigation regarding a disability claim denial.
• Represented an institutional trustee with respect to ongoing fiduciary matters and legal compliance requirements, including assisting the trustee in the review of valuation reports, providing counsel regarding the conduct of “pass-through” votes on major corporate transactions and representing trustee in IRS and DOL investigation.

Publications

Speaking Engagements

News

Podcasts

Community & Professional

American Bar Association, Exempt Organizations and Governmental Entities Subcommittee, Vice-Chair

National Conference on Public Employee Retirement Systems SECURE 2.0 Task Force

State Bar of California, Employee Benefits and Executive Compensation Subcommittee, Member and Former Chair

Los Angeles County Bar Association, Tax Section, Member and Former Chair

International Foundation of Employee Benefit Plans, Member

National Association of Public Pension Attorneys, Tax Section, Member

Women's Lawyers Association of Los Angeles, Member

Free Arts for Abused Children, Board Member

Honors & Recognitions

Included in The Best Lawyers in America^© for Employee Benefits (ERISA) Law, 2020-2023, 2025