No Peace in Quiet: What to Consider as New Lawsuits Challenge Voluntary Benefits

In a new wave of lawsuits filed under the Employee Retirement Income Security Act of 1974 (ERISA), four employers were sued during the recent holiday season for allegedly breaching ERISA fiduciary duties regarding their voluntary benefits insurance offerings. The voluntary benefits at issue are accident insurance, critical illness insurance, cancer insurance, and hospital indemnity insurance. Let’s take a look at the important points employers should consider.

Allegations of Excessive Premiums

The four putative class action lawsuits generally allege that the employers and their benefits brokers breached their ERISA fiduciary duties and caused the participants to pay excessive premiums because they:

• Failed to engage in a prudent process when selecting the insurance offerings.
• Failed to monitor the commissions received by the benefits brokers.
• Failed to monitor the loss ratios on the various insurance policies.

The lawsuits are just the latest example of how employees’ litigators are knocking at the door of welfare plan administration, attempting to establish a foothold for ERISA fiduciary damages, and building on their success in the 401(k) retirement plan industry. These latest cases are somewhat surprising because many employers that offer these types of voluntary benefits treat the offerings as being exempt from ERISA.

Exemption for Voluntary Plans

The exemption for voluntary plans is found in Department of Labor (DOL) ERISA Regulation Section 2510.3-1(j) and includes requirements like employees’ paying the full cost of the premium and employers’ avoiding promotion of the programs.

The complaints that were filed allege that the named employers don’t rely on the exemption and instead operate their voluntary benefit programs as subject to ERISA. Whether this allegation is true or not, it serves as a reminder to employers that do wish to avoid ERISA that the exemption for voluntary benefits isn’t automatic.

Evaluate Your Benefit Offerings

In addition to ensuring voluntary benefit programs are either exempt from or subject to ERISA, as intended, in light of these new lawsuits, you may want to evaluate your voluntary benefit offerings in general. You should know the following:

• What contracts exist with brokers, insurers, or other vendors for these programs?
• How are the brokers, insurers, and vendors compensated?
• Who selects the voluntary benefits, and what alternatives are available?
• Is it possible to determine whether the premiums charged to employees are competitive?
• What are the loss ratios for the voluntary benefits insurance offerings?

Alex Smith is an attorney with Holland & Hart LLP in Denver, Colorado, and can be reached at aasmith@hollandhart.com.

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