You probably already know that in small, wholly owned “mom and pop” businesses, benefits covering only the owners of the business may be exempt from ERISA.

But the rule has some nuances, and ERISA may apply based on who owns the business.

Here is the case of Silverman v. Unum Group, 2015 WL 460345 (July 30, 2015) (“‘[A] plan covering only corporate shareholders was exempt from ERISA only if the company was whollyowned by one shareholder or by the shareholder and his or her spouse.’”)

FACTS: Silverman was part-owner of a company. He owned 15%, and two others owned 85% of the business. The company obtained Long Term Disability coverage only for the shareholder/owners of the company. Plaintiff sought and received disability benefits, but claimed the calculations of payments were incorrect and sued, asserting state law claims. Unum contended ERISA applied and that the state law claims were preempted.

DISTRICT COURT HELD: Owner deemed employee, and benefits governed by ERISA: state law claims preempted.

  1. To qualify as an ERISA plan, the plan ‘must provide benefits to at least one employee.’” Op. at 4.
  2. To determine whether a plan covers at least one employee, “the Court cannot consider the owner of the corporation an ‘employee’ where the corporation is ‘wholly owned by the individual or by the individual and his or her spouse.’” Op. at 4.
  3. “‘Congress intended working owners to qualify as [ERISA] plan participants.’” Op. at 5.
  4. “‘Plans covering working owners and their non owner employees…fall entirely within ERISA’s compass.’” Op. at 5.
  5. “‘[A] plan covering only corporate shareholders was exempt from ERISA only if the company was wholly owned by one shareholder or by the shareholder and his or her spouse.’” Op. at 6 (Emph. in original).
  6. Since Silverman owned the company with two others, he “is considered an employee under ERISA and his plan is an ERISA plan. Additionally, [Silverman] also was paid a salary and hired by the corporation, further supporting his treatment as an employee for ERISA purposes.” Op. at 6.