Unbelievable: ERISA's Broken Promise [ver. 4.0; August 2021]

Abstract

A central but generally neglected objective of federal regulation of pension and welfare benefit plans was to improve overall economic efficiency by providing workers with accessible and reliable information on which to base their career and financial planning. Simple dissemination of plan terms and financial data (full disclosure) cannot achieve that objective because few workers are equipped with the skills needed to evaluate the costs and benefits of complex retirement saving or health care programs. For that reason ERISA, the Employee Retirement Income Security Act of 1974, requires curated disclosure of plan-related information: it must be presented a format that is both understandable to the average plan participant and sufficiently complete to empower workers to make best use of the program. The length and complexity of most employee benefit plans creates tension between understandability and completeness, calling for tradeoffs to achieve optimal disclosure. As implemented ERISA’s understandability standard has been jettisoned by plan sponsors seeking protection from liability for failing to tell workers enough. Required plan summaries became unreadable, but plan sponsors could get away with that, both because there was no administrative or judicial enforcement of the understandability standard, and because they could tout the advantages of their benefit plans to workers by means of unregulated informal communications. The demise of understandability is only half the story. Federal courts also degraded the reliability of mandatory disclosures by finding that the obligation to provide reasonably accurate and complete information is enforceable only in a suit for appropriate equitable relief. In consequence, disclosure defects are often presented as estoppel claims, which triggers search for individual detrimental reliance, and translates into widespread under-enforcement of the reliability standard. This article explores the policy dimension of ERISA disclosure law and chronicles the decay of the equilibrium Congress envisioned. From the perspective of workers it is a saga of disappointment, disillusionment, and defeat. The new balance serves the interests of federal courts (reduced caseload) and some employers (increased flexibility), but likely contributes to the increasing standardization of employee benefit plans, decreasing their utility as instruments of workforce management. Far worse, it abandons ERISA’s goal of improved economic performance through better-informed career and financial planning. Yet those costs are not immutable: employers’ liability exposure could be recalibrated by regulation to revive understandability and approach optimal disclosure.