Future of Arbitrating ERISA Complaints

whether employees, as plan participants, could bring their employers, the plan sponsors, to court rather than be subjected to arbitration for breach of their fiduciary duty in operating retirement plans under the Employee Retirement Income Security Act (ERISA).

Employers routinely offer their employees employment contracts which contain arbitration clauses. Employers also offer retirement plans as part of the employment package to their employees. At that time of hiring, employers may not foresee what issues could occur down the road, and whether such issues will need to be worked out through arbitration or litigation.

Employers favor arbitration over litigation as a cost-effective strategy to resolve disputes with employees. Now, questions arise whether disputes concerning retirement plans fall under the arbitration clause that both the employer and employee agreed to in the employment contract. Considering the dispute arises from the relationship between employer and employee, it is reasonable to argue the arbitration clause governs such a dispute.

However, the United States Court of Appeals for the Ninth Circuit in Munro decided that the arbitration clause does not apply to the dispute in this case regarding the retirement plans because “the Plans” did not agree to the arbitration clause. Indeed, the only two parties that agreed to the arbitration clause in the employment contract were the employee and employer, who is merely a sponsor of the plan. Furthermore, the United States Court of Appeals stressed the case Munro was brought on behalf of the retirement plans rather than the plan participants.

Using the logic of the United States Court of Appeals for the Ninth Circuit, for a dispute involving an employer’s breach of fiduciary duties in sponsoring retirement plans, an arbitration clause needs to be binding on the retirement plan because such disputes make the retirement plan a party to the suit.

Because of this decision, sponsoring retirement plans for their employees could become a growing concern if other circuits agree. Now, employers may begin distinguishing their roles as employer from their roles as plan sponsors, and the effects this has on the relationship between employer and employee concerning not just their employment contract but their options for dispute resolution.

When sponsoring retirement plans, employers must now consider the following issues:

-- The role of retirement plans as a potential party to the dispute, independent from the plan participants role
-- Whether the dispute is subject to the employer and employee relationship
-- The scope of the arbitration clause in the employment contract
-- Whether the retirement plans themselves are subject to the employment contract
-- How to subject “The Plan” to the arbitration clause in the employment contract
-- How to subject “The Plan” to an arbitration clause independent of the employment contract

The future of the arbitration clause applying to ERISA complaints remains uncertain in similar cases after this recent decision by the United States Court of Appeals for the Ninth Circuit. Furthermore, whether employers as sponsors of retirement plans will incorporate an arbitration clause in retirement plans is a question that can only be answered in the future.

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* Munro vs. University of Southern California, U.S. Court of Appeals, Case No: 17-55550 (9th Cir. 2018) Page 6.

Note: ERISA Benefits Consulting, Inc. by Mark Johnson provides benefit consulting and advisory services and does not engage in the practice of law.

August 2018



Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.