August 20th, 2019
Ellisa H. Culp, Eric D. Penkert, Thomas M. Christina at Ogletree Deakins
This guide is intended to provide a general overview of the principal laws that apply when an employer chooses to provide benefits for its employees. The purpose of the guide is to help employers communicate with their advisors more effectively about employee benefits and benefit programs.
Employee benefits (or simply “benefits” – the two terms are used interchangeably) take many forms, from simple holiday pay to complicated pension plans. This chapter introduces some basic terms and concepts that are useful for discussing and understanding a wide variety of employee benefits. This chapter also introduces the reader to some of the laws that apply to a wide range of employee benefits, without delving into the specifics of how those laws apply to particular kinds of benefits and without discussing specific legal rights and obligations that arise under employee benefit plans. Later chapters of this guide are devoted to particular types of benefits or to particular duties that come into play under the laws governing employee benefits.
The term “employee benefits” is commonly used to refer to various forms of compensation provided to employees in addition to wages. It is helpful to think of employee benefits in terms of two general categories:
The first broad category of employee benefits consists of compensation that is payable because of services rendered by the employee (and that usually is payable in cash), where the due date for the payment is postponed or deferred beyond the point at which wages for the employee’s services normally would be due. Deferred compensation benefits often involve postponing or deferring payment to a later taxable year than the taxable year in which the services were performed to earn the benefit. Under some types of deferred compensation arrangements, the right to a payment may also be made contingent on a fact or condition that will not be determined until a later period.
Some retirement plans provide benefits in the form of monthly payments that begin when the employee retires or reaches age 65 (whichever occurs later) and that continue only for the employee’s remaining lifetime.
The category of employee benefits referred to as “deferred compensation” includes pension and profit sharing plans, such as plans popularly referred to as “401(k) plans” that allow the employee to elect to have a contribution credited to his or her plan account instead of receiving a portion of his or her current wages in cash. It also includes “stock bonus plans,” including employee stock ownership plans (ESOPs), which are structured very similarly to profit sharing plans but which are funded primarily with employer stock and can distribute benefits to the employees in the form of employer stock rather than cash. Pension, profit sharing, and stock bonus plans all can be written and operated in such a way that they qualify for favorable tax treatment. When plans of this kind are structured and operated to qualify for favorable tax treatment, they are often referred to as “qualified plans.” Chapter 9, Retirement plans discusses qualified plans are in more detail.
Chapter 10, Additional 401(k) qualification requirements, is a separate discussion of some special additional rules that apply to 401(k) plans.
The “deferred compensation” category of employee benefits also includes plans that are not intended to be qualified plans. For instance, employers often establish special retirement plans for executives that pay benefits in addition to the benefits the executive is entitled to receive under the employer’s qualified pension plan. Plans of this type are generally not entitled to the favorable tax treatment afforded to qualified plans. There is no single term that is universally used to refer to plans of this nature. They are sometimes called non-qualified plans, supplemental executive retirement plans (SERPs), or deferred compensation plans. Non-qualified plans are discussed in Chapter 11, Non-qualified deferred compensation plans.
The second broad category of employee benefits consists primarily of “coverage” for certain unpredictable life events (such as insurance coverage in the case of illness, death, or unemployment), plus some types of goods or services provided directly to the employee and/or the employee’s family members either as a matter of employer discretion (such as a holiday bonus), or at least partially for the convenience of the employer (such as company-paid parking). “Coverage” in this context can mean insurance coverage or coverage under a program that is similar in certain specific ways to insurance, including a “self-insured” program under which the employer bears the financial risk associated with the plan.
Coverage under an insurance policy or a self-insured arrangement often results in a cash payment to the employee, the employee’s beneficiary, or a third party such as a physician or dentist who provides services to the employee. However, coverage is not always limited to arrangements that result in a cash payment or a cash reimbursement to the employee.
Medical coverage under an agreement with a health maintenance organization (HMO) could consist of an employee’s right to medical treatment without a fee for the treatment.
Some of the benefits in this second broad category are required by law, such as coverage for medical care and lost wages as the result of job related illnesses or accidents in the form of workers’ compensation insurance coverage (or coverage under a self-insured arrangement). Coverage that is required by law, plus employer contributions to federal pension programs such as the social security pension system, are often referred to as “statutory benefits.” Statutory benefits do not play a major role in the discussion of employee benefits law in this handbook. This guide devotes more attention to benefits, such as medical and dental programs, life insurance coverage, and most other non-cash employee benefits that are not required by law. Benefits such as medical and life insurance coverage that an employer is not required to provide are often referred to as “welfare benefits” or “health and welfare benefits.”
Life insurance coverage as an optional employee benefit is discussed in Chapter 2, Life insurance. Medical benefit plans are discussed in Chapters 3, Health benefit plans; Chapter 4, Regulation of group health plans; and Chapter 5, Healthcare reform. The topic of Chapter 6, Disability plans are the benefits provided under disability plans. Chapter 7, Severance plans gives more detail on benefit plans that provide coverage to employees in the event of involuntary job termination, such as severance plans. Chapter 8, Cafeteria plans discusses plans that can be used to allow employees to pay for certain kinds of welfare plan coverage on a tax-favored basis.
The laws that govern employee benefits are complex and almost always place some burdens or responsibilities on employers that do not arise in connection with the payment of cash wages. In the last three decades, there have been many changes in the laws governing employee benefits. Since this Guide is intended to give the reader a general overview of the laws that can govern employee benefits, the discussion that follows is limited to the laws that have the greatest effect on employers in the private sector. There is no discussion of other laws that are applicable only to tax exempt or state or local government employers, which differ in many ways from the laws applicable to employers in the private sector.
Although many state and federal laws can come into play when employers provide benefits for their employees, both of the following two laws, in particular, have the greatest effect on how private sector employers provide benefits to their employees:
The IRC and ERISA often operate in coordination with each other to promote the adoption of certain types of benefit arrangements and to prevent the adoption of others. However, the way each statute operates is quite different. The IRC creates financial incentives for employers to provide certain benefits to certain groups of employees using specific benefit arrangements, while ERISA governs the rights of employees if the employer establishes certain types of benefit plans (including many of the most commonly offered types of plans). ERISA also establishes corresponding duties that must be fulfilled by the employer and others in administering such plans.
The IRC operates primarily by creating financial incentives for employers to provide certain types of employee benefits and to operate their benefit plans in certain ways. The incentives usually take the form of allowing the employer to take a current tax deduction for the cost of the benefit provided to one or more employees. The employee generally is not required to include the value of the benefit in his or her taxable income, or may be allowed to postpone including the benefit in taxable income until a later tax year. For instance, the IRC often allows an employer to deduct the amount the employer places in a trust to provide retirement benefits to employees at a later date and yet the IRC postpones the income tax payable by the employees until they receive the retirement benefits (which might not occur until decades later). Similarly, the IRC generally allows employees to receive up to $50,000 of employer-provided group term life insurance coverage without having to pay income tax on the employer-provided benefit and yet the IRC allows the employer to deduct the cost of the premiums for that coverage.
In some instances, the IRC also establishes tax penalties for operating employee benefit plans in violation of specific federal policies, so that the “incentive” created by the IRC is based on the employer’s desire to avoid a penalty instead of merely a desire to take a tax deduction. The imposition of penalties allows the federal government to exercise control over benefit programs sponsored by a broader range of employers, including employers that are exempt from federal income tax.
The IRC sets out specific and often very detailed conditions for employee benefit arrangements that employers and benefit plans must meet to achieve the desired tax advantages of those arrangements. Thus, compliance with the IRC’s conditions for favorable tax treatment technically is voluntary, although, as a practical matter, employers would suffer needless (and in some cases crippling) tax burdens if they did not comply.
ERISA establishes broad-ranging rules for how employee benefits are provided. The provisions of ERISA can be enforced by the U.S. Department of Labor (DOL) and by the federal courts in lawsuits initiated by employees. For most employers in the private sector, ERISA and the DOL regulations issued under ERISA are the principal laws governing the day-to-day planning and operation of employee benefit programs.
ERISA does not require any employer to offer or provide any benefit to any employee. ERISA does not offer a direct financial incentive to establish such programs. Instead, viewed in the broadest terms, ERISA, as it was originally adopted in 1974, focused on six major areas of possible concern to employees that can arise once an employer chooses to establish certain types of employee benefit plans:
To a large extent, ERISA takes a “hands off” approach to an employer’s decisions about the terms under which the employer will offer benefits to employees. Decisions such as whether a dental plan should have a limit for orthodontics, or whether a 401(k) match should stop at 4% or 6%, are sometimes called “plan design” decisions, and ERISA is neutral on most questions of plan design. In fact, when it was originally enacted, ERISA contained very few rules that limited an employer’s choices about how to structure or design benefit plans, with the exception of a few provisions that impose mandatory requirements for defined benefit pension plans to ensure their fairness and financial integrity.
Over the years, however, ERISA has been amended numerous times to make certain types of plan provisions mandatory for certain types of plans.
ERISA leaves an employer free to decide whether or not to offer medical benefit programs to its employees, but if an employer decides to do so, the medical benefit plans must allow for certain minimum benefits in connection with childbirth as the result of the Newborns’ and Mothers’ Health Protection Act. Moreover, under the Patient Protection and Affordable Care Act (ACA), a typical employer may be required to pay a tax penalty if it fails to provide “minimum essential coverage” for healthcare to its full time employees at an affordable cost.
The provisions of ERISA that establish requirements for specific types of benefit plans will be discussed in the chapters that follow. ERISA’s participant disclosure and fiduciary duty rules will be discussed in Chapter 12, Employee communications under ERISA, and Chapter 13, Fiduciary duties under ERISA, which are devoted exclusively to those topics.
The obligations and requirements that stem from ERISA are often hard to understand. ERISA does not apply to every situation in which an employer promises or provides someone with an employee benefit. ERISA applies to employer-sponsored arrangements for employee benefits only where an employer has established an “employee benefit plan” that provides one or more of the benefits listed or referred to in ERISA for its employees. Furthermore, even when these conditions have been met, ERISA does not necessarily apply to a given employee benefit plan. There are exceptions to ERISA coverage based on:
When ERISA applies, it generally prevents the application of most types of state laws to an employee benefit plan and to the employers and others who administer the plan. This effect is called “ERISA pre-emption” and is discussed in more detail later in this chapter.
As noted previously, ERISA does not necessarily apply to every situation in which an employer promises or provides an employee benefit to one or more employees. There are several important limitations on ERISA’s application. The application of ERISA depends on whether there is an “employee benefit plan,” a term that has a very specific meaning under ERISA.
ERISA defines the term “employee benefit plan” to include any “plan, fund, or program ... established or maintained by an employer or an employee organization” to provide specific kinds of benefits to one or more employees or former employees of the employer. Thus, all three of the following three basic conditions must be met for ERISA to apply:
ERISA applies only if employee benefits are provided under a plan, fund, or program (often referred to simply as a “plan”). The definition of an “employee benefit plan” for purposes of ERISA coverage does not require that a “plan, fund, or program” be in writing. There are provisions elsewhere in ERISA requiring that employee benefit plans be administered in accordance with a written plan document, but this requirement should not be confused with the question of whether a plan exists. The courts have made it very clear over the years that if an arrangement fits the definition of an employee benefit plan covered by ERISA, the fact that the plan is unwritten does not mean that ERISA is inapplicable. Instead, it means that the plan is covered by ERISA, but is not in compliance with one of ERISA’s provisions.
ERISA does not define any of the terms in the phrase “plan, fund, or program.” The lack of a definition of the phrase “plan, fund, or program” initially led to some uncertainty about whether ERISA applied in close cases. For instance, not long after ERISA was adopted, the Supreme Court held that ERISA did not apply to a company’s system for complying with a state statute requiring payments in the event of an involuntary termination of employment, payable in fixed lump sum amounts determined by the statute. The U.S. Supreme Court held that complying with the state statute did not require the employer to establish a “plan” for purposes of ERISA because it did not require an “ongoing administrative scheme.” The scope of this decision has proven to be quite narrow. Today, except in a handful of courts, the decision ordinarily is applied only where the employer has no discretion regarding what triggers any one of the following:
Thus, in the vast majority of cases, the lack of a definition of the phrase “plan, fund, or program” does not pose a problem, since it is clear that ERISA’s “plan” requirement is satisfied whenever there is a process in place for providing benefits under given circumstances, and the process was in place before an event occurred that triggers the entitlement to or payment of the benefit. The “process” necessary to cause ERISA to apply need not be very elaborate and it can take various forms. It might be a process for setting aside funds that are specifically dedicated to paying benefits, or investing funds that were set aside previously. It might be a process for interpreting or applying the terms of a benefit arrangement in order to decide whether a given set of facts entitles a person to benefits. It might be a process for deciding the amount of benefits due, or whether benefit payments should be terminated after they began. It might be a process to arrange for the continuation of periodic payments of benefits. Of particular importance, the process can fall within ERISA’s definition of an employee benefit plan even if it applies only to a single employee or even if it applies only for a brief period of time (such as a severance plan in connection with the closure of a specific facility).
An arrangement is not an employee benefit plan unless it was established by an employer to cover at least one employee of the employer that sponsors or maintains the arrangement or by an employee organization to cover one or more employees because of their status as employees. (Because this guide is intended for employers, plans maintained by labor unions and other employee organizations will not be discussed further.) ERISA defines the term “employer” broadly to include “any person acting directly as an employer, or indirectly in the interest of an employer in relation to an employee benefit plan; and includes a group or association of employers acting for the employer in such capacity.” Thus it is possible, at least in principle, that a plan sponsored or maintained by an organization of employers for the employees of constituent members of the organization is covered under ERISA. However, courts have ruled that a plan maintained by an association of employers does not necessarily satisfy the requirement of employer sponsorship or maintenance. It is also necessary that the association and the individuals that benefit from the plan are tied by a common economic or representational interest, unrelated to the provision of benefits.
The existence of an employer-employee relationship for the purpose of determining ERISA coverage is usually determined by common law employment principles. There is a limited exception to this rule relating to partnerships. Although partners in a partnership are not regarded as common law employees, a medical plan established by a partnership that covers only the partners and their dependents is covered under ERISA.
Coverage of even a single employee is sufficient to satisfy the requirement that the plan provides a benefit because of an employment relationship. Moreover, coverage of even a single employee is sufficient to cause the entire plan to be governed by ERISA, even when the plan also covers a person (such as a sole proprietor) who is not a common law employee of the business.
An arrangement is not covered by ERISA unless it provides certain specific types of benefits. The only benefits that can trigger ERISA coverage are:
There are several exceptions to ERISA coverage that were written into the statute or that were established by regulations issued by the DOL. The exceptions apply even if the plan was established by an employer to provide ERISA-covered benefits to employees.
ERISA has a very broad effect. Where it applies, ERISA imposes duties not only on the employer but also on other parties involved in the administration of the benefit plan, such as the trustee that holds the plan’s assets and the administrator that implements the plan’s provisions.
When ERISA applies to a plan, ERISA nullifies and replaces (preempts) almost all state laws that might otherwise apply to:
The state laws preempted by ERISA are not limited to laws that conflict with ERISA. State laws that relate to any employee benefit plan covered under ERISA can be preempted even if they provide for rights or duties that are consistent with ERISA but go further than ERISA does in regulating plan administration or in providing remedies to employees whose rights may have been violated.
In addition to preempting state laws, ERISA generally restricts benefit plan litigation to non-jury trials in federal court and restricts the types of relief available to successful plaintiffs. The only claims that depend on ERISA, which can be brought in state court, are claims for specific plan benefits or proceedings to clarify employees’ rights to benefits under covered plans, and even these actions may be “removed” (transferred) by the defendants to a federal court.
Despite the fact that the IRC uses tax incentives and ERISA uses traditional forms of regulation to achieve certain goals, both statutes have many purposes in common. One of the most important purposes ERISA and the IRC have in common is requiring employers to make employee benefits available to a broad cross-section of their employees, rather than merely providing valuable benefits to executives, managers, or similar groups within the employer’s organization. The system of incentives and regulations in these statutes that are designed to accomplish these goals would not work as intended if business enterprises could be divided into separate units for purposes of complying with the IRC and ERISA. For this reason, both the IRC and ERISA often ignore the way enterprises are organized into separate corporations or other units, even though the law generally treats separate corporations or other units as distinct from each other for most other purposes.
Thus, when the IRC and/or ERISA apply to a given situation involving employee benefits, they very often apply not only to the primary employer (that is, the corporation, partnership, or individual proprietor that provides the benefit and/or employs the recipient of the benefit), but also to corporations, partnerships, or sole proprietorships that are related to the primary employer.
For instance, many sections of the IRC that pertain to employer-provided benefits use the term “employer” to refer to a group composed of both of the following:
To avoid the need to repeat the definition in detail, most people refer to the group described previously as “the controlled group” and refer to the rules for deciding whether or not a given business is part of a controlled group as “the controlled group rules.”
A determination that two or more entities are a controlled group can be based on any or all of the following:
How these rules are applied also depends on a related set of rules, which treat certain ownership interests nominally held by one person as being held by other related persons (such as the nominal owner’s spouse), and takes into account the economic substance of various arrangements such as options that can affect nominal ownership of an entity. Furthermore, the business relationship among two or more non-controlled group employers may result in the employers being treated as a single employer under a different set of rules referred to as the “affiliated service group” rules. The affiliated service group rules operate to aggregate non-controlled group employers performing certain services for one another or together for third parties. A discussion of controlled group and affiliated service group rules is beyond the scope of this guide.
As noted previously, quite literally dozens of Congressional measures affecting employee benefits have been enacted into law over the past three decades. Many of these acts are sometimes referred to as if they were stand-alone laws, such as the Health Insurance Portability and Accountability Act (HIPAA), or the continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA) – but many of these laws were amendments to the IRC or ERISA pertaining to specific types of benefit plans, and they will be discussed at the appropriate point in the chapters herein.
Several other federal laws that are not merely amendments to the IRC or ERISA also directly affect how employers structure and operate their employee benefit plans, although not to the extent that the IRC and ERISA do. Those statutes are briefly described here.
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer to discriminate on account of age against any individual who is age 40 or older “with respect to compensation, terms, conditions, or privileges of employment,” including employee benefits. The prohibited discrimination can take a variety of forms, including imposing a limit on eligibility based on reaching a certain age, causing employee contributions to increase at higher ages, or reducing benefits based on increasing age.
However, the ADEA contains an exception to the general rule prohibiting age discrimination with respect to employee benefit plans. The exception covers circumstances in which the allegedly discriminatory action arises because the employer “observes the terms of a bona fide employee benefit plan” and either the plan is a voluntary early retirement incentive program or certain tests are satisfied that show that the cost of providing benefits to the older worker are equal to the costs of providing benefits to younger workers. The term “bona fide employee benefit plan” means that the employee benefit plan meets all three of the following criteria:
If the written terms of a bona fide plan explicitly require non-coverage or reduced benefits for certain employees because of age so that the employer has no room for discretion, then the employer will be treated as observing the terms of the plan by applying the age-based provisions of the plan exactly as written.
Title VII of the Civil Rights Act (Title VII) prohibits discrimination in employment based on race, color, religion, sex, or national origin. Thus, if an employer is covered by Title VII, the employer’s benefit plans cannot be designed or intentionally operated to discriminate on the basis of any of these categories. The rules and principles for steering clear of a Title VII violation with respect to race, color, religion, or national origin are no different for employee benefits than for other terms and conditions of employment. Avoiding prohibited discrimination on the basis of sex requires some special attention in the case of benefit plans because discrimination based on pregnancy or a pregnancy related condition is treated as discrimination based on sex, and because there is ongoing controversy over whether Title VII applies to the terms of medical plans relating to contraception and infertility treatments.
The Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) directly affect how employee benefit plans must treat employees who are on an FMLA-protected or a USERRA-protected leave of absence. The specific requirements of these statutes for particular types of benefit plans are discussed in several of the following chapters.