EBSA: Enforcement Initiative Depends on Employee Input

By SHRM Online staff Nov 18, 2010

The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) on Nov. 16, 2010, emphasized the importance of workers serving as the first line of defense in identifying wrongdoing connected with their health or retirement plan contributions that are governed by the Employee Retirement Income Security Act (ERISA) of 1974.

During the news conference, EBSA Assistant Secretary Phyllis C. Borzi noted that in 2010 the agency has taken on ​ 24 civil cases filed in federal district courts around the nation. In these cases, money that workers had earmarked for their pension or health plans was not deposited in the plans; employers used it for their own purposes or purposes unrelated to the plans.

Fourteen of the cases dealt with 401(k) plans. The 24 cases represent plans ranging from 10 participants to more than 100 participants, Borzi said.

The agency has “seen a spike in these cases,” she said. “It has been building. … We’ve been seeing an increase [in such activity] over the past couple of years.”

She cited a DOL lawsuit against the owner and president of the now-defunct Northern Rhode Island Anesthesia Associates P.C. and its subsidiaries as an example of wrongdoing by an employer. The employer is alleged to have failed to forward more than $6 million in contributions plus interest owed to the company’s pension plan.

“It’s very important for workers to understand their rights and responsibilities when they reach out to us. We try to help them any way we can,” she said. Although in many cases the organization under investigation has gone out of business, she said EBSA often is successful in retrieving the employees’ contributions from the business owner.

Under ERISA, the DOL can conduct civil and criminal investigations to protect employee benefit programs and the assets set aside to pay benefits to workers and their families.

EBSA offers the following warning signs that a worker’s contributions are being misused:

  • Your 401(k) or individual account statement is consistently late or comes at irregular intervals.
  • Your account balance does not appear to be accurate.
  • Your employer failed to transmit your contribution to the plan on a timely basis.
  • There is a significant drop in account balance that cannot be explained by normal market ups and downs.
  • A statement indicates that your contribution from your paycheck was not made.
  • Investments listed on your statement are not what you authorized.
  • Former employees are having trouble getting their benefits paid on time or in the correct amounts.
  • There are unusual transactions, such as a loan to the employer, a corporate officer or one of the plan trustees.
  • There are frequent and unexplained changes in investment managers or consultants.
  • The employer has recently experienced severe financial difficulty.

Employees who suspect misuses of their funds are urged to contact EBSA at 1-866-444-3272. The call center will route those calls to EBSA benefits advisors.


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