Employers that contribute to multiemployer fringe benefit plans are generally aware of the financial risks associated with these plans. In addition to making regular contributions to these plans required by their collective bargaining agreements, these employers are subject to periodic contribution audits by the plans, potential surcharges or increased contributions owed to pension plans in endangered or critical status, and potentially expensive pension plan withdrawal liability, among other costs.
Despite these financial risks, all too often, a contributing employer only has a rudimentary understanding of the financial status of the multiemployer plans to which it contributes, or its obligations under the agreements that govern the plans, such as trust agreements, participation agreements, audit and collection policies, and related documents. For example, when a multiemployer plan audits an employer’s contributions or assesses withdrawal liability, it is common for an employer to realize it possesses very few relevant plan or trust-related documents. What’s worse is that based on a consistent line of court decisions, by contributing to a multiemployer plan, an employer, in almost all cases, is agreeing to be bound by the documents adopted and rules implemented by the plan, whether or not the employer is aware of them.
If Sir Francis Bacon was correct in saying that knowledge is power, then employers participating in multiemployer fringe benefit plans should obtain relevant plan-related documents and understand their rights and obligations under their fringe benefit plan relationships. Fortunately, there are some avenues for employers to accomplish this.
ERISA Section 101(k)
Under ERISA Section 101(k), if a contributing employer requests it, the administrator of a multiemployer defined benefit (i.e., pension) plan must furnish the employer with a copy of:
- Plan and trust documents, with amendments;
- Summary plan description;
- The employer’s participation agreements;
- The plan’s annual reports, ERISA funding notices, periodic actuarial reports, any quarterly, semi-annual, or annual financial reports prepared for the plan by any investment manager or advisor, or other fiduciary, and audited financial statements. The administrator is not required to provide copies of these documents if they have been in the administrator’s possession for six or more years;
- Any amortization period extension application filed with the Secretary of Treasury and any response;
- The latest funding improvement plan or rehabilitation plan, and the contribution schedules that apply to them (as long as not applicable to any specific employer); and
- A catch-all category of any other instrument or agreement under which the plan is established or operated.
A plan administrator is required to provide the requested information within 30 days of the request but is not required to provide individually identifiable information or proprietary information. An employer is only entitled to one copy of the requested documents in any 12-month period. A plan may assess a reasonable charge for copying, mailing, and other costs or furnishing the information.
ERISA Section 101(l)
ERISA Section 101(l) requires the sponsor or administrator of a multiemployer pension plan to furnish to a contributing employer upon written request (1) a withdrawal liability estimate as if the employer withdrew from the plan on the last day of the plan year prior to the request, and (2) an explanation of how the estimated liability was determined, including the actuarial assumptions and methods used to determine the value of the plan’s liabilities and assets, data regarding the employer’s contributions, unfunded vested benefits, annual changes to the plan’s unfunded vested benefits, and the application of any limitations on the estimated liability.
The plan sponsor or administrator must provide this information within 180 days after the request, or, depending on the method used to determine withdrawal liability, an extended period if necessary. An employer is entitled to this information only once during any 12-month period, and a plan may assess a reasonable charge for copying, mailing, and other costs of furnishing the information.
Some employers request the documents available under ERISA Sections 101(k) and (l) every year. Doing this is helpful in keeping an employer informed about a pension plan’s status. Seeking an annual withdrawal liability estimate can also be useful if an employer is contemplating a business transaction that could give rise to withdrawal liability. Requesting annual information avoids red flags that can arise when an employer only requests a withdrawal liability estimate when a withdrawal might be imminent.
There are a number of other sources for multiemployer fringe benefit plan-related documents.
- Fringe benefit plans and union websites often post links to key plan documents and have specific pages dedicated to employer relations.
- Employer associations involved in collective bargaining for their members or member advocacy can be a source of plan-related documents.
- Employers can be successful requesting fringe plan documents from the union or fringe benefit plan during collective bargaining.
- A fringe benefit plan’s executive director or third-party administrator will sometimes provide documents upon request.
- Employer-appointed trustees and other participating employers may have and share relevant documents.
- Some business owners are or used to be participants in multiemployer benefit plans and may have a right to certain documents under ERISA and other laws.
Employers that contribute to multiemployer fringe benefit plans should not be passive players in the process. As they would with other aspects of their business, they should understand the financial implications of their obligations and have copies of documents to which they are bound. Requesting documents required to be provided by a fringe benefit plan and seeking sources of other key documents is basic due diligence every contributing employer should consider. Discussing multiemployer fringe benefit plan best practices with experienced legal counsel is also an important way for an employer to manage the multiemployer relationship.