For most firms, voluntary benefits are a win-win arrangement. But there could be hidden risks.
On the positive side, voluntary benefits cost businesss next to nothing, yet boost employees’ morale and benefits satisfaction. An Aon survey found 77% of companies offer at least one voluntary benefit.
But what happens when there’s a legal dispute between one or more of your workforce and the vendor?
In many cases, employers unwittingly get dragged into court. The provider may argue that the plan is covered by ERISA, and the employee’s lawsuit should instead be filed against his or her employer.
When the court agrees, the legal burden shifts. Some courts have ruled that a voluntary benefits may be covered under ERISA, even when it wasn’t an employer’s intention to formally “sponsor” the plan.
If push comes to shove, the vendors will protect themselves. In truth, some attorneys warn that a voluntary plan insurer’s first move if sued by one of your workforce are going to be to try to get the legal burden shifted from itself to you.
Two seemingly innocent things that can be turned against you in court -
o The written announcement to tell workers about the new voluntary benefit, and
o getting involved when there’s a dispute between an employee and the plan provider.
Be careful with announcements When you offer a new voluntary benefit, the natural tendency is to try to get staff members pumped up to participate. But you can get in trouble when individuals get the impression the firm endorses the plan. Helpful practices -
o Don’t put the announcement on organizational letterhead
o Put a disclaimer on the description
o either exclude your voluntary offerings from employees’ benefits manuals or list them separately, and
o hold open enrollment at a different time than for ERISA plans (401(k), main health plan, etc.).
Moreover, if the provider offering the voluntary plan has competitors, you could want to remind employees the provider of the voluntary plan isn’t the only game in town. Some firms pass along lists of competing providers.
Prevent involvement in disputes as with your ERISA plans, chances are personnel will come to you when they have a problem with a voluntary plan. Your first inclination is to help.
But many specialists warn it’s better to stay out. Reason – Courts see this as the action of a plan sponsor. But you can steer someone in the right direction (e.g., giving a contact name to call) while remaining neutral in the dispute.
Good intentions gone bad
From an ERISA standpoint, the most perilous voluntary plan design is one that is partially paid by the company, even if workers pay the bulk of the cost.
In a major ruling a few years ago (Burgess v. Cigna Life Insurance), a United States district court ruled against an company with a voluntary supplemental disability plan in which the firm paid a portion of premiums on behalf of its lower-paid employees.
While most workforce paid the entire premium ?.” and firm made clear to individuals the plan was a voluntary benefit ?.”the court said it didn’t matter. The act of contributing to some employees’ premiums made it an ERISA plan.