ERISA Lawyers

ERISA Protects Your Promised Benefits

Employees who receive benefits such as health care, disability insurance, and a 401(k) retirement plan from their employers have legal rights under the federal Employee Retirement Income Security Act (ERISA) and its amendments. Under ERISA, you have the right to:

• Establish a grievance and appeals process to get your benefits
• Sue for your rightful benefits
• Sue for breaches of fiduciary duty
• Keep your health insurance for a limited time after a loss of job
• Fight discrimination in health care

ERISA law covers more than you think. It protects the benefits you rely on. To ensure the protection of those rights, you need an ERISA attorney you can depend on. With over 60 years of combined legal experience and over 100 appellate decisions to our name, DeBofsky Law knows how to use the ERISA statute to hold employers accountable and get you the benefits you were promised.

What Is the ERISA Law?

ERISA (29 U.S.C. § 1001 et seq.) is an expansive federal statute that was enacted in 1974 to prevent pension plan abuses. ERISA requires that pension assets be held in trust, and it imposes fiduciary duties and reporting requirements on employers and plan administrators. ERISA also established the Pension Benefit Guarantee Corporation (PBGC), which provides relief to participants in failed pension plans.

ERISA has broad preemption language (29 U.S.C. § 1144) that supersedes all state laws that relate to employee benefits, except for criminal laws, insurance laws, and laws that regulate banking and securities. ERISA provides the exclusive remedy for a denial of benefits or breach of fiduciary duty, and it supersedes state bad faith laws and laws providing compensatory and punitive damages.

ERISA (29 U.S.C. § 1140) makes it unlawful for an employer to retaliate against a plan participant or beneficiary for exercising his or her right to employee benefits, or for blowing the whistle on plan abuses and fiduciary misconduct.

Our Founding Partner, Mark DeBofsky, Explains ERISA:

What Does ERISA Apply to?

ERISA is noteworthy for its breadth. It applies to all employer-sponsored benefit plans, including not just pension benefits but also health insurance, disability insurance, life insurance, accidental death and dismemberment insurance, and even severance benefits, among others.

ERISA applies to all employer-sponsored benefit plans, regardless of the size of the employer or number of employees, subject to only a handful of exceptions:

• Government employers are exempt from ERISA;
• Religiously-affiliated employers (aka “church plans”) are exempt from ERISA (but can opt into ERISA regulation);
• “Payroll practices,” such as short-term disability plans that pay an employee’s salary from an employer’s general assets, are exempt from ERISA;
• Voluntary insurance that is made available by an employer, but where participation is voluntary, not endorsed by the employer, and the employee pays the premiums, is exempt from ERISA; and
• Individual insurance or retirement benefits that are purchased or obtained by the employee outside of the employment context are exempt from ERISA.

What Does an ERISA Attorney Do?

An ERISA lawyer can help you by confirming that ERISA applies to your claim and by obtaining the governing plan documents from your employer. The lawyer should counsel you as to the plan terms and identify other employee benefits and employment laws that are implicated by your situation. An ERISA lawyer can assist you in preparing a benefits claim and can anticipate issues to avoid a claim denial. If your claim is denied, an ERISA lawyer should obtain the claim file and use that information to inform his or her strategy concerning your appeal.

If your appeal is denied, an ERISA lawyer can assist you by filing a suit on your behalf against the appropriate parties, in the ideal jurisdiction, citing all viable theories of recovery. An ERISA lawyer can negotiate a settlement with the other side or, if settlement discussions fail, take your case to judgment (and, if necessary, to the court of appeals) until you receive justice.

What Remedies Are Available Under ERISA?

ERISA remedies for a denial of benefits are very limited. An ERISA plan participant can recover the benefits due to him or her through the date of judgment, as well as potential interest and attorneys fees. Claimants cannot recover compensatory or punitive damages. Similarly, in a suit for plan-wide relief, individualized relief is generally not available, although a participant in a 401(k) plan may sue a plan administrator for losses that affect only that participant’s account.

A participant may use an ERISA plan administrator to obtain “other appropriate equitable relief” (including, potentially, “make whole” relief), but such relief is generally not available where the plan language unambiguously forecloses benefits.

Remedies are also available if a plan administrator fails to respond to a request for plan documents, and employment retaliation related to benefits claims and whistleblower claims.

What Does an ERISA Attorney Charge?

There are a variety of ways in which an ERISA lawyer may structure his or her attorney’s fees.  Attorneys handling an appeal or lawsuit over the denial of benefits typically operate on a contingency fee basis, in which they charge a percentage of the total recovery in exchange for assuming the risk of losing the case and recovering $0.

In some circumstances, it may not be possible to offer a contingency fee arrangement because the underlying benefits have already been received, as is often the case in an ERISA health insurance dispute. In those circumstances, the attorney may offer his or her services on an hourly or flat fee basis.

Attorney’s fees are recoverable under ERISA, but an award of attorney’s fees is subject to the discretion of the trial court. Courts typically consider the following five factors in deciding whether to grant an award of attorneys’ fees:

• the degree of the offending parties’ culpability; 
• the degree of the ability of the offending parties to satisfy personally an award of attorneys’ fees;
• whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances;
• the amount of benefit conferred on members of the pension plan as a whole; and
• the relative merits of the parties’ positions.

Additionally, in the Seventh Circuit, courts consider whether the losing party’s position was substantially justified.

Notably, attorneys’ fees may be awarded not just to prevailing plaintiffs but to prevailing defendants as well. Thus, a claimant can be ordered to pay the attorneys’ fees of a prevailing ERISA plan administrator or fiduciary, though such awards are rare.

Why Choose Us as Your ERISA Lawyer?

Appeals and litigation under the ERISA statute are complex and require the skills of an experienced benefits attorney.  With over 60 years of combined legal experience and nearly 100 appellate decisions to our name, DeBofsky Law has a proven record. We have successfully litigated thousands of ERISA claims across the country, including several cases of first impression and appeals, and recovered millions of dollars in benefits owed. We have secured compensation in some of the most complex ERISA matters possible, and we would be honored to do the same for you.