The Employee Benefits Security Administration (EBSA), the division tasked with enforcing ERISA, is showing a renewed vigor.
ERISA—the Employee Retirement Income Security Act of 1974—covers more than just retirement plans. It also imposes many obligations on non-pension benefits (i.e., welfare benefits including employer-sponsored group health plans). EBSA employs approximately 1,000 people nationwide, in ten regions aggregated into five districts, to enforce ERISA regulations — violations of which can involve civil and criminal penalties. Recently, both Marc I. Machiz, Director of the EBSA’s Philadelphia Region, and Phyllis Borzi, Assistant Secretary of Labor for the EBSA, made remarks regarding EBSA’s investigative efforts and specific initiatives for ERISA plans.
Many EBSA investigations begin when a plan participant reaches out to the agency with a question regarding their particular plan. Questions are referred to one of EBSA’s Benefit Advisors, who are charged with answering basic questions–from plans and participants–and with conducting preliminary investigations into complaints. An investigation can encompass witness interviews and discovery requests, as well as follow-up interviews and requests. If an informal resolution with the plan or plan sponsor cannot be reached, the Benefits Advisor refers the matter to EBSA’s investigators, who in turn will run through a “checklist” looking for ERISA violations. Roughly 450 EBSA employees are investigators, cross trained in both civil and criminal enforcement. Keep in mind, EBSA can also initiate an investigation in the absence of a complaint. Investigative triggers include Form 5500s.
Most importantly, remember that an EBSA investigation into a plan participant complaint can develop into a wide-ranging investigation into issues wholly unrelated to the initial complaint. An investigation can also morph into a criminal case, which would be prosecuted by the local U.S. Attorney’s Office. Don’t take ERISA compliance lightly. Read more about EBSA’s investigative initiatives in this recent blog post from attorneys at Seyfarth Shaw.
