Threading the Eye of the ERISA Needle: ERISA Preemption and Alternative Legal Schemes to Fill the Regulatory Vacuum

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results. Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or its venue, and lead to consistency in the process. However, ERISA has not entirely lived up to its initial purpose of providing workers a safety net. The so-called safety net, in fact, has often become a barrier obstructing plaintiffs in their pursuit of make-whole relief on claims that welfare benefits have been denied or mismanaged. ERISA’s preemption feature has produced the negative consequence of changing what were meant to be benefits to barriers. Analysis of the ERISA preemption scheme and the evolution of ERISA in the courts reveals exactly how ERISA has gone awry, and whether there remain any glimmers of hope for plaintiffs filing welfare benefits or pension claims.