Tuesday, November 18, 2008
ERISA -- An academic analysis
Paul Secunda (Associate Professor, Marquette University Law School) has posted on SSRN his article entitled Sorry, No Remedy: The Grand Irony of ERISA.
Here is an abstract of the article:
Although all legal regimes result in some inevitable inequities occurring to some parties, the inequities resulting from the application of ERISA are systematic as a result of how preemption and/or remedial provisions are applied in these employee benefit cases. Although these claim have a systematic quality, they are not inevitable. Rather they result from two interrelated phenomenon caused by the U.S. Supreme Court interpretation of the pertinent ERISA provisions: (1) a decision to broadly construe the preemption provisions of ERISA so that most state laws do not survive ERISA preemption; and (2) a separate, but connected, decision to narrowly construe the remedies available to participants and beneficiaries available under ERISA's civil enforcement scheme.
The dual operation of preemption and remedy provisions on employees' benefit claims is that many employees are finding that they have no meaningful remedy for their claims under the statute. It is the central argument of this paper that this state of affairs exists because the Court, in the voice of the strict constructionist Justices, has consistently favored employer interests under the statute rather than those of employees. They have accomplished this feat by elevating a secondary purpose of ERISA, to make sure employers voluntarily adopt employee benefit plans, over the primary purpose of ERISA, to ensure employees and their beneficiaries are protected in their pension and welfare benefits.
To right the ERISA ship and stop permitting employers to use this statute as a shield against employee benefit-related claims, I argue for the adoption of the remedialist approach championed by another group of Justices over the years. These Justices rightly believe that analysis under ERISA should start with the common law of trusts, upon which ERISA is primarily based. To the extent that there are deviations from that common law, only then should the unique characteristics of the ERISA statute be considered in applying the preemption and remedial provisions.