Offering Benefits to Independent Contractors Without Creating Employees: The New State Portable Benefits Safe Harbors

Matthew I. Whitehorn, Partner | Dilworth Paxson LLP

Matthew I. Whitehorn is a Partner in Dilworth Paxson’s Tax Group, Chair of the firm’s Employee Benefits Group, Chair of its Pro Bono Committee, and a member of its Executive Committee. He has concentrated his practice on ERISA matters for more than 25 years, advising employers, plan sponsors, and fiduciaries on retirement, health and welfare, and deferred compensation arrangements. He served as the 2016-2017 Chair of the IRS Advisory Committee on Tax Exempt and Government Entities (ACT).

• Education & Credentials

Mr. Whitehorn earned his LL.M. in Taxation from Temple University School of Law in 1987, his J.D. from Villanova University School of Law in 1984, and a B.A./M.A. in History from Johns Hopkins University in 1981. He is admitted to practice in Pennsylvania (1984), New Jersey (1985), and the District of Columbia (1988), as well as before the U.S. Court of Appeals for the Third Circuit, the U.S. District Court for the Eastern District of Pennsylvania, and the U.S. Tax Court. He speaks Hebrew.

• Recognition & Leadership

Mr. Whitehorn is ranked in Chambers USA for Pennsylvania Employee Benefits & Executive Compensation (2025 to present) and is a Fellow of the American College of Employee Benefits Counsel. He has been selected to The Best Lawyers in America for Employee Benefits (ERISA) Law since 2022 and named to the Pennsylvania Super Lawyers list for Employee Benefits from 2014-2019 and 2022 to present. He received the Legal Clinic for The Disabled Special Service Award in 2019 and the Villanova Law Alumni Association Award for Public Service in 2017.

• Professional Involvement

Mr. Whitehorn serves as Co-Chair of the Philadelphia Bar Association Employee Benefits Committee and is a member of its Pension Committee. He is a member of the International Foundation of Employee Benefits Plans, the IRS Mid-Atlantic Area Pension Liaison Group, the ABA Labor and Employment Section (Employee Benefits Committee), the ABA Tax Section’s Low Income Taxpayer Committee, and the Pennsylvania Bar Association’s Legal Services to the Public Committee and Tax Section. He is an Adjunct Law Faculty member at Temple University Beasley School of Law, where he has taught Qualified Employee Benefit Plans and Executive Compensation through its Graduate Tax Program, and he serves as Treasurer of AccessMatters and on the Finance Committee of Philadelphia VIP, Inc.

• Experience

Mr. Whitehorn advises the human resource departments of private sector companies, tax-exempt organizations, and governmental employers on retirement and health and welfare plans. His practice covers Affordable Care Act compliance, governmental and tax-exempt employer pension and 457(b) plans, employee benefits in bankruptcy, compliance reviews of qualified retirement plans, and nonqualified deferred compensation plans under Code Section 409A and Code Section 457(f). He negotiated a settlement with the U.S. Department of Labor EBSA over fiduciary breach claims, interacted with the PBGC regarding an involuntary plan termination, secured IRS and U.S. Department of Labor plan correction approvals, negotiated settlements of multiemployer plan withdrawal liability assessments, and obtained relief from IRS-assessed ACA ESRP and reporting penalties.

SESSION 1 – Advising Clients on Contractor Benefit Contributions: The State-by-State Go/No-Go Analysis and the Drafting That Follows | 1:00pm – 2:00pm

Maps the portable benefits safe harbors in Utah, Tennessee, Alabama, and Georgia, then builds a jurisdiction-specific go/no-go framework for advising clients, structuring independent contractor agreements, and meeting each enacted state law’s statutory drafting requirements.

BREAK | 2:00pm – 2:10pm

SESSION 2 – Keeping Contractor Benefit Accounts Outside ERISA: Plan-Status, MEWA, and Tax Traps in Portable Benefits Design | 2:10pm – 3:10pm

Examines the federal risks that remain once state safe harbors are satisfied: ERISA plan-status exposure, MEWA classification, and the IRC tax-exclusion gap, plus structural design principles, Form M-1 exposure, HSA workarounds, and pending federal legislation’s limits.