UNITED STATES
CODE ANNOTATED
TITLE 29. LABOR
CHAPTER 18--EMPLOYEE RETIREMENT
INCOME SECURITY PROGRAM
SUBCHAPTER I--PROTECTION
OF EMPLOYEE BENEFIT RIGHTS
SUBTITLE A--GENERAL PROVISIONS
Current through P.L. 107-136, approved
1-24-02
' 1002. Definitions
For purposes of this
subchapter:
(1)
The terms "employee welfare benefit plan" and "welfare plan"
mean any plan, fund, or program which was heretofore or is hereafter established
or maintained by an employer or by an employee organization, or by both, to
the extent that such plan, fund, or program was established or is maintained
for the purpose of providing for its participants or their beneficiaries,
through the purchase of insurance or otherwise, (A) medical, surgical, or
hospital care or benefits, or benefits in the event of sickness, accident,
disability, death or unemployment, or vacation benefits, apprenticeship or
other training programs, or day care centers, scholarship funds, or prepaid
legal services, or (B) any benefit described in section 186(c) of this title
(other than pensions on retirement or death, and insurance to provide such
pensions).
(2)(A) Except
as provided in subparagraph (B), the terms "employee pension benefit
plan" and "pension plan" mean any plan, fund, or program which
was heretofore or is hereafter established or maintained by an employer or
by an employee organization, or by both, to the extent that by its express
terms or as a result of surrounding circumstances such plan, fund, or program--
(i) provides
retirement income to employees, or
(ii) results
in a deferral of income by employees for periods extending to the termination
of covered employment or beyond,
regardless of the method of calculating the contributions
made to the plan, the method of calculating the benefits under the plan or
the method of distributing benefits from the plan.
(B) The Secretary
may by regulation prescribe rules consistent with the standards and purposes
of this chapter providing one or more exempt categories under which--
(i) severance
pay arrangements, and
(ii) supplemental retirement income
payments, under which the pension benefits of retirees or their beneficiaries
are supplemented to take into account some portion or all of the increases
in the cost of living (as determined by the Secretary of Labor) since retirement,
shall, for purposes of this subchapter, be treated
as welfare plans rather than pension plans.
In the case of any arrangement or payment a principal effect of which
is the evasion of the standards or purposes of this chapter applicable to
pension plans, such arrangement or payment shall be treated as a pension plan.
(3) The term
"employee benefit plan" or "plan" means an employee welfare
benefit plan or an employee pension benefit plan or a plan which is both an
employee welfare benefit plan and an employee pension benefit plan.
(4) The term
"employee organization" means any labor union or any organization
of any kind, or any agency or employee representation committee, association,
group, or plan, in which employees participate and which exists for the purpose,
in whole or in part, of dealing with employers concerning an employee benefit
plan, or other matters incidental to employment relationships;
or any employees' beneficiary association organized for the purpose
in whole or in part, of establishing such a plan.
(5)
The term "employer" means any person acting directly as an employer,
or indirectly in the interest of an employer, in relation to an employee benefit
plan; and includes a group or association
of employers acting for an employer in such capacity.
(6) The term
"employee" means any individual employed by an employer.
(7) The term
"participant" means any employee or former employee of an employer,
or any member or former member of an employee organization, who is or may
become eligible to receive a benefit of any type from an employee benefit
plan which covers employees of such employer or members of such organization,
or whose beneficiaries may be eligible to receive any such benefit.
(8) The term
"beneficiary" means a person designated by a participant, or by
the terms of an employee benefit plan, who is or may become entitled to a
benefit thereunder.
(9) The term
"person" means an individual, partnership, joint venture, corporation,
mutual company, joint-stock company, trust, estate, unincorporated organization,
association, or employee organization.
(10) The term
"State" includes any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island,
and the Canal Zone. The term "United
States" when used in the geographic sense means the States and the Outer
Continental Shelf lands defined in the Outer Continental Shelf Lands Act (43
U.S.C. 1331-1343).
(11) The term "commerce" means
trade, traffic, commerce, transportation, or communication between any State
and any place outside thereof.
(12) The term
"industry or activity affecting commerce" means any activity, business,
or industry in commerce or in which a labor dispute would hinder or obstruct
commerce or the free flow of commerce, and includes any activity or industry
"affecting commerce" within the meaning of the Labor Management
Relations Act, 1947 [29 U.S.C.A. ' 141 et seq.], or the Railway Labor Act [45 U.S.C.A. ' 151 et seq.]
(13) The term
"Secretary" means the Secretary of Labor.
(14) The term
"party in interest" means, as to an employee benefit plan--
(A) any fiduciary
(including, but not limited to, any administrator, officer, trustee, or custodian),
counsel, or employee of such employee benefit plan;
(B) a person
providing services to such plan;
(C) an employer
any of whose employees are covered by such plan;
(D) an employee
organization any of whose members are covered by such plan;
(E) an owner,
direct or indirect, of 50 percent or more of--
(ii) the
capital interest or the profits interest of a partnership, or
(iii) the
beneficial interest of a trust or unincorporated enterprise,
which is an employer
or an employee organization described in subparagraph (C) or (D);
(F) a relative
(as defined in paragraph (15)) of any individual described in subparagraph
(A), (B), (C), or (E);
(G) a corporation,
partnership, or trust or estate of which (or in which) 50 percent or more
of--
(i) the
combined voting power of all classes of stock entitled to vote or the total
value of shares of all classes of stock of such corporation,
(ii) the
capital interest or profits interest of such partnership, or
(iii) the
beneficial interest of such trust or estate,
is owned
directly or indirectly, or held by persons described in subparagraph (A),
(B), (C), (D), or (E);
(H) an employee,
officer, director (or an individual having powers or responsibilities similar
to those of officers or directors), or a 10 percent or more shareholder directly
or indirectly, of a person described in subparagraph (B), (C), (D), (E), or
(G), or of the employee benefit plan; or
(I)
a 10 percent or more (directly or indirectly in capital or profits) partner
or joint venturer of a person described in subparagraph (B), (C), (D),
(E), or (G).
The Secretary, after consultation and coordination
with the Secretary of the Treasury, may by regulation prescribe a percentage
lower than 50 percent for subparagraph (E) and (G) and lower than 10 percent
for subparagraph (H) or (I). The Secretary
may prescribe regulations for determining the ownership (direct or indirect)
of profits and beneficial interests, and the manner in which indirect stockholdings
are taken into account. Any person
who is a party in interest with respect to a plan to which a trust described
in section 501(c)(22) of Title 26 is permitted to make payments under section
1403 of this title shall be treated as a party in interest with respect to
such trust.
(15) The term
"relative" means a spouse, ancestor, lineal descendant, or spouse
of a lineal descendant.
(16)(A) The
term "administrator" means--
(i) the person
specifically so designated by the terms of the instrument under which the
plan is operated;
(ii) if an
administrator is not so designated, the plan sponsor; or
(iii) in
the case of a plan for which an administrator is not designated and a plan
sponsor cannot be identified, such other person as the Secretary may by regulation
prescribe.
(B) The term "plan sponsor"
means (i) the employer in the case of an employee benefit plan established
or maintained by a single employer, (ii) the employee organization in the
case of a plan established or maintained by an employee organization, or (iii)
in the case of a plan established or maintained by two or more employers or
jointly by one or more employers and one or more employee organizations, the
association, committee, joint board of trustees, or other similar group of
representatives of the parties who establish or maintain the plan.
(17) The term
"separate account" means an account established or maintained by
an insurance company under which income, gains, and losses, whether or not
realized, from assets allocated to such account, are, in accordance with the
applicable contract, credited to or charged against such account without regard
to other income, gains, or losses of the insurance company.
(18)
The term "adequate consideration" when used in part 4 of subtitle
B of this subchapter means (A) in the case of a security for which there is
a generally recognized market, either (i) the price of the security prevailing
on a national securities exchange which is registered under section 78f of
Title 15, or (ii) if the security is not traded on such a national securities
exchange, a price not less favorable to the plan than the offering price for
the security as established by the current bid and asked prices quoted by
persons independent of the issuer and of any party in interest;
and (B) in the case of an asset other than a security for which there
is a generally recognized market, the fair market value of the asset as determined
in good faith by the trustee or named fiduciary pursuant to the terms of the
plan and in accordance with regulations promulgated by the Secretary.
(19) The term
"nonforfeitable" when used with respect to a pension benefit or
right means a claim obtained by a participant or his beneficiary to that part
of an immediate or deferred benefit under a pension plan which arises from
the participant's service, which is unconditional, and which is legally enforceable
against the plan. For purposes of
this paragraph, a right to an accrued benefit derived from employer contributions
shall not be treated as forfeitable merely because the plan contains a provision
described in section 1053(a)(3) of this title.
(20) The term
"security" has the same meaning as such term has under section 77b(1)
of Title 15.
(21)(A)
Except as otherwise provided in subparagraph (B), a person is a fiduciary
with respect to a plan to the extent (i) he exercises any discretionary authority
or discretionary control respecting management of such plan or exercises any
authority or control respecting management or disposition of its assets, (ii)
he renders investment advice for a fee or other compensation, direct or indirect,
with respect to any moneys or other property of such plan, or has any authority
or responsibility to do so, or (iii) he has any discretionary authority or
discretionary responsibility in the administration of such plan.
Such term includes any person designated under section 1105(c)(1)(B)
of this title.
(B) If any
money or other property of an employee benefit plan is invested in securities
issued by an investment company registered under the Investment Company Act
of 1940 [15 U.S.C.A. ' 80a-1 et seq.], such investment
shall not by itself cause such investment company or such investment company's
investment adviser or principal underwriter to be deemed to be a fiduciary
or a party in interest as those terms are defined in this subchapter, except
insofar as such investment company or its investment adviser or principal
underwriter acts in connection with an employee benefit plan covering employees
of the investment company, the investment adviser, or its principal underwriter. Nothing contained in this subparagraph shall
limit the duties imposed on such investment company, investment adviser, or
principal underwriter by any other law.
(22)
The term "normal retirement benefit" means the greater of the early
retirement benefit under the plan, or the benefit under the plan commencing
at normal retirement age. The normal
retirement benefit shall be determined without regard to--
(A) medical
benefits, and
(B) disability
benefits not in excess of the qualified disability benefit.
For purposes of this paragraph, a qualified disability
benefit is a disability benefit provided by a plan which does not exceed the
benefit which would be provided for the participant if he separated from the
service at normal retirement age. For
purposes of this paragraph, the early retirement benefit under a plan shall
be determined without regard to any benefit under the plan which the Secretary
of the Treasury finds to be a benefit described in section 1054(b)(1)(G) of
this title.
(23) The term
"accrued benefit" means--
(A) in the
case of a defined benefit plan, the individual's accrued benefit determined
under the plan and, except as provided in section 1054(c)(3) of this title,
expressed in the form of an annual benefit commencing at normal retirement
age, or
(B) in the
case of a plan which is an individual account plan, the balance of the individual's
account.
The accrued benefit of an employee shall not be less
than the amount determined under section 1054(c)(2)(B) of this title with
respect to the employee's accumulated contribution.
(24) The term
"normal retirement age" means the earlier of--
(A) the time
a plan participant attains normal retirement age under the plan, or
(B) the later
of--
(i) the
time a plan participant attains age 65, or
(ii) the
5th anniversary of the time a plan participant commenced participation in
the plan.
(25) The term
"vested liabilities" means the present value of the immediate or
deferred benefits available at normal retirement age for participants and
their beneficiaries which are nonforfeitable.
(26) The term
"current value" means fair market value where available and otherwise
the fair value as determined in good faith by a trustee or a named fiduciary
(as defined in section 1102(a)(2) of this title) pursuant to the terms of
the plan and in accordance with regulations of the Secretary, assuming an
orderly liquidation at the time of such determination.
(27) The term
"present value", with respect to a liability, means the value adjusted
to reflect anticipated events. Such
adjustments shall conform to such regulations as the Secretary of the Treasury
may prescribe.
(28) The term "normal service cost"
or "normal cost" means the annual cost of future pension benefits
and administrative expenses assigned, under an actuarial cost method, to years
subsequent to a particular valuation date of a pension plan. The Secretary of the Treasury may prescribe
regulations to carry out this paragraph.
(29) The term
"accrued liability" means the excess of the present value, as of
a particular valuation date of a pension plan, of the projected future benefit
costs and administrative expenses for all plan participants and beneficiaries
over the present value of future contributions for the normal cost of all
applicable plan participants and beneficiaries. The Secretary of the Treasury may prescribe regulations to carry
out this paragraph.
(30) The term
"unfunded accrued liability" means the excess of the accrued liability,
under an actuarial cost method which so provides, over the present value of
the assets of a pension plan. The
Secretary of the Treasury may prescribe regulations to carry out this paragraph.
(31)
The term "advance funding actuarial cost method" or "actuarial
cost method" means a recognized actuarial technique utilized for establishing
the amount and incidence of the annual actuarial cost of pension plan benefits
and expenses. Acceptable actuarial
cost methods shall include the accrued benefit cost method (unit credit method),
the entry age normal cost method, the individual level premium cost method,
the aggregate cost method, the attained age normal cost method, and the frozen
initial liability cost method. The terminal funding cost method and the current
funding (pay-as-you-go) cost method are not acceptable actuarial cost methods.
The Secretary of the Treasury shall issue regulations to further define
acceptable actuarial cost methods.
(32) The term
"governmental plan" means a plan established or maintained for its
employees by the Government of the United States, by the government of any
State or political subdivision thereof, or by any agency or instrumentality
of any of the foregoing. The term
"governmental plan" also includes any plan to which the Railroad
Retirement Act of 1935, or 1937 [45 U.S.C.A. ' 231 et seq.] applies, and which is financed by contributions
required under that Act and any plan of an international organization which
is exempt from taxation under the provisions of the International Organizations
Immunities Act [22 U.S.C.A. ' 288 et seq.].
(33)(A) The
term "church plan" means a plan established and maintained (to the
extent required in clause (ii) of subparagraph (B)) for its employees (or
their beneficiaries) by a church or by a convention or association of churches
which is exempt from tax under section 501 of Title 26.
(B) The term
"church plan" does not include a plan--
(i) which is established and maintained
primarily for the benefit of employees (or their beneficiaries) of such church
or convention or association of churches who are employed in connection with
one or more unrelated trades or businesses (within the meaning of section
513 of Title 26), or
(ii) if less
than substantially all of the individuals included in the plan are individuals
described in subparagraph (A) or in clause (ii) of subparagraph (C) (or their
beneficiaries).
(C) For purposes
of this paragraph--
(i) A plan
established and maintained for its employees (or their beneficiaries) by a
church or by a convention or association of churches includes a plan maintained
by an organization, whether a civil law corporation or otherwise, the principal
purpose or function of which is the administration or funding of a plan or
program for the provision of retirement benefits or welfare benefits, or both,
for the employees of a church or a convention or association of churches,
if such organization is controlled by or associated with a church or a convention
or association of churches.
(ii) The
term employee of a church or a convention or association of churches includes--
(I) a duly
ordained, commissioned, or licensed minister of a church in the exercise of
his ministry, regardless of the source of his compensation;
(II) an employee of an organization,
whether a civil law corporation or otherwise, which is exempt from tax under
section 501 of Title 26 and which is controlled by or associated with a church
or a convention or association of churches;
and
(III) an
individual described in clause (v).
(iii) A church
or a convention or association of churches which is exempt from tax under
section 501 of Title 26 shall be deemed the employer of any individual included
as an employee under clause (ii).
(iv) An organization,
whether a civil law corporation or otherwise, is associated with a church
or a convention or association of churches if it shares common religious bonds
and convictions with that church or convention or association of churches.
(v) If an
employee who is included in a church plan separates from the service of a
church or a convention or association of churches or an organization, whether
acivil law corporation or otherwise, which is exempt from tax under section
501 of Title 26 and which is controlled by or associated with a church or
a convention or association of churches, the church plan shall not fail to
meet the requirements of this paragraph merely because the plan--
(I)
retains the employee's accrued benefit or account for the payment of benefits to the employee or his beneficiaries pursuant to the terms
of the plan; or
(II) receives
contributions on the employee's behalf after the employee's separation from
such service, but only for a period of 5 years after such separation, unless
the employee is disabled (within the meaning of the disability provisions
of the church plan or, if there are no such provisions in the church plan,
within the meaning of section 72(m)(7) of Title 26) at the time of such separation
from service.
(D)(i) If
a plan established and maintained for its employees (or their beneficiaries)
by a church or by a convention or association of churches which is exempt
from tax under section 501 of Title 26 fails to meet one or more of the requirements
of this paragraph and corrects its failure to meet such requirements within
the correction period, the plan shall be deemed to meet the requirements of
this paragraph for the year in which the correction was made and for all prior
years.
(ii) If a
correction is not made within the correction period, the plan shall be deemed
not to meet the requirements of this paragraph beginning with the date on
which the earliest failure to meet one or more of such requirements occurred.
(iii) For
purposes of this subparagraph, the term "correction period" means--
(I) the period ending 270 days after
the date of mailing by the Secretary of the Treasury of a notice of default
with respect to the plan's failure to meet one or more of the requirements
of this paragraph; or
(II) any
period set by a court of competent jurisdiction after a final determination
that the plan fails to meet such requirements, or, if the court does not specify
such period, any reasonable period determined by the Secretary of the Treasury
on the basis of all the facts and circumstances, but in any event not less
than 270 days after the determination has become final; or
(III) any
additional period which the Secretary of the Treasury determines is reasonable
or necessary for the correction of the default,
whichever has the latest ending date.
(34) The term
"individual account plan" or "defined contribution plan"
means a pension plan which provides for an individual account for each participant
and for benefits based solely upon the amount contributed to the participant's
account, and any income, expenses, gains and losses, and any forfeitures of
accounts of other participants which may be allocated to such participant's
account.
(35)
The term "defined benefit plan" means a pension plan other than
an individual account plan; except that a pension plan which is not an
individual account plan and which provides a benefit derived from employer
contributions which is based partly on the balance of the separate account
of a participant--
(A) for the
purposes of section 1052 of this title, shall be treated as an individual
account plan, and
(B) for the
purposes of paragraph (23) of this section and section 1054 of this title,
shall be treated as an individual account plan to the extent benefits are
based upon the separate account of a participant and as a defined benefit
plan with respect to the remaining portion of benefits under the plan.
(36) The term
"excess benefit plan" means a plan maintained by an employer solely
for the purpose of providing benefits for certain employees in excess of the
limitations on contributions and benefits imposed by section 415 of Title
26 on plans to which that section applies without regard to whether the plan
is funded. To the extent that a separable
part of a plan (as determined by the Secretary of Labor) maintained by an
employer is maintained for such purpose, that part shall be treated as a separate
plan which is an excess benefit plan.
(37)(A) The
term "multiemployer plan" means a plan--
(i) to which
more than one employer is required to contribute,
(ii)
which is maintained pursuant to one or more collective bargaining agreements
between one or more employee organizations and more than one employer, and
(iii) which
satisfies such other requirements as the Secretary may prescribe by regulation.
(B) For purposes
of this paragraph, all trades or businesses (whether or not incorporated)
which are under common control within the meaning of section 1301(b)(1) of
this title are considered a single employer.
(C) Notwithstanding
subparagraph (A), a plan is a multiemployer plan on and after its termination
date if the plan was a multiemployer plan under this paragraph for the plan
year preceding its termination date.
(D) For purposes
of this subchapter, notwithstanding the preceding provisions of this paragraph,
for any plan year which began before September 26, 1980, the term "multiemployer
plan" means a plan described in this paragraph (37) as in effect immediately
before such date.
(E) Within
one year after September 26, 1980, a multiemployer plan may irrevocably elect,
pursuant to procedures established by the corporation and subject to the provisions
of sections 1453(b) and (c) of this title, that the plan shall not be treated
as a multiemployer plan for all purposes under this chapter or the Internal
Revenue Code of 1954 if for each of the last 3 plan years ending prior to
the effective date of the Multiemployer Pension Plan Amendments Act of 1980--
(i) the plan was not a multiemployer
plan because the plan was not a plan described in subparagraph (A)(iii) of
this paragraph and section 414(f)(1)(C) of Title 26 (as such provisions were
in effect on the day before September 26, 1980);
and
(ii) the
plan had been identified as a plan that was not a multiemployer plan in substantially
all its filings with the corporation, the Secretary of Labor and the Secretary
of the Treasury.
(F)(i) For
purposes of this subchapter a qualified football coaches plan--
(I) shall
be treated as a multiemployer plan to the extent not inconsistent with the
purposes of this subparagraph; and
(II) notwithstanding
section 401(k)(4)(B) of Title 26, may include a qualified cash and deferred
arrangement.
(ii) For purposes
of this subparagraph, the term "qualified football coaches plan"
means any defined contribution plan which is established and maintained by
an organization--
(I) which
is described in section 501(c) of Title 26;
(II) the
membership of which consists entirely of individuals who primarily coach football
as full-time employees of 4-year colleges or universities described in section
170(b)(1)(A)(ii) of Title 26; and
(III) which
was in existence on September 18, 1986.
(38) The term "investment manager"
means any fiduciary (other than a trustee or named fiduciary, as defined in
section 1102(a)(2) of this title)--
(A) who has
the power to manage, acquire, or dispose of any asset of a plan;
(B) who (i)
is registered as an investment adviser under the Investment Advisers Act of
1940 [15 U.S.C.A. ' 80b-1 et seq.]; (ii) is not registered as an investment adviser
under such Act by reason of paragraph (1) of section 80b-3a of Title 15,
is registered as an investment adviser under the laws of the State (referred
to in such paragraph (1)) in which it maintains its principal office and place
of business, and, at the time the fiduciary last filed the registration form
most recently filed by the fiduciary with such State in order to maintain
the fiduciary's registration under the laws of such State, also filed a copy
of such form with the Secretary; (iii)
is a bank, as defined in that Act; or (iv) is an insurance company qualified to perform services described
in subparagraph (A) under the laws of more than one State; and
(C) has acknowledged
in writing that he is a fiduciary with respect to the plan.
(39) The terms
"plan year" and "fiscal year of the plan" mean, with respect
to a plan, the calendar, policy, or fiscal year on which the records of the
plan are kept.
(40)(A) The term "multiple employer
welfare arrangement" means an employee welfare benefit plan, or any other
arrangement (other than an employee welfare benefit plan), which is established
or maintained for the purpose of offering or providing any benefit described
in paragraph (1) to the employees of two or more employers (including one
or more self-employed individuals), or to their beneficiaries, except that
such term does not include any such plan or other arrangement which is established
or maintained--
(i) under
or pursuant to one or more agreements which the Secretary finds to be collective
bargaining agreements,
(ii) by a
rural electric cooperative, or
(iii) by
a rural telephone cooperative association.
(B) For purposes
of this paragraph--
(i) two or
more trades or businesses, whether or not incorporated, shall be deemed a
single employer if such trades or businesses are within the same control group,
(ii) the
term "control group" means a group of trades or businesses under
common control,
(iii)
the determination of whether a trade or business is under "common control"
with another trade or business shall be determined under regulations of the
Secretary applying principles similar to the principles applied in determining
whether employees of two or more trades or businesses are treated as employed
by a single employer under section 1301(b) of this title, except that, for
purposes of this paragraph, common control shall not be based on an interest
of less than 25 percent,
(iv) the
term "rural electric cooperative" means--
(I) any
organization which is exempt from tax under section 501(a) of Title 26 and
which is engaged primarily in providing electric service on a mutual or cooperative
basis, and
(II) any
organization described in paragraph (4) or (6) of section 501(c) of Title
26 which is exempt from tax under section 501(a) of Title 26 and at least
80 percent of the members of which are organizations described in subclause
(I), and
(v) the term
"rural telephone cooperative association" means an organization
described in paragraph (4) or (6) of section 501(c) of Title 26 which is exempt
from tax under section 501(a) of such Title and at least 80 percent of the
members of which are organizations engaged primarily in providing telephone
service to rural areas of the United States on a mutual, cooperative, or other
basis.
(41) [FN2] Single-employer plan
The term
"single-employer plan" means an employee benefit plan other than
a multiemployer plan.
(41) [FN2] The term "single employer
plan" means a plan which is not a multiemployer plan.
' 1132. Civil enforcement
(a) Persons empowered to bring a civil action
(1) by a
participant or beneficiary--
(A) for
the relief provided for in subsection (c) of this section, or
(B)
to recover benefits due to him under the terms of his plan, to enforce his
rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan;
(2) by the
Secretary, or by a participant, beneficiary or fiduciary for appropriate relief
under section 1109 of this title;
(3) by a
participant, beneficiary, or fiduciary (A) to enjoin any act or practice which
violates any provision of this subchapter or the terms of the plan, or (B)
to obtain other appropriate equitable relief (i) to redress such violations
or (ii) to enforce any provisions of this subchapter or the terms of the plan;
(4) by the
Secretary, or by a participant, or beneficiary for appropriate relief in the
case of a violation of 1025(c) of this title;
(5) except
as otherwise provided in subsection (b) of this section, by the Secretary
(A) to enjoin any act or practice which violates any provision of this subchapter,
or (B) to obtain other appropriate equitable relief (i) to redress such violation
or (ii) to enforce any provision of this subchapter;
(6) by the
Secretary to collect any civil penalty under paragraph (2), (4), (5), or (6) of subsection (c) of this section
or under subsection (i) or (l) of this section;
(7) by a
State to enforce compliance with a qualified medical child support order (as
defined in section 1169(a)(2)(A) of this title);
(8) by the Secretary, or by an employer
or other person referred to in section 1021(f)(1) of this title, (A) to enjoin
any act or practice which violates subsection (f) of section 1021 of this
title, or (B) to obtain appropriate equitable relief (i) to redress such violation
or (ii) to enforce such subsection; or
(9)
in the event that the purchase of an insurance contract or insurance annuity
in connection with termination of an individual's status as a participant
covered under a pension plan with respect to all or any portion of the participant's
pension benefit under such plan constitutes a violation of part 4 of this
title [FN1] or the terms of the plan, by the Secretary, by any individual
who was a participant or beneficiary at the time of the alleged violation,
or by a fiduciary, to obtain appropriate relief, including the posting of
security if necessary, to assure receipt by the participant or beneficiary
of the amounts provided or to be provided by such insurance contract or annuity,
plus reasonable prejudgment interest on such amounts.
(b) Plans qualified under Internal Revenue Code; maintenance of actions involving delinquent
contributions
(1)
In the case of a plan which is qualified under section 401(a), 403(a), or
405(a) of Title 26 (or with respect to which an application to so qualify
has been filed and has not been finally determined) the Secretary may exercise
his authority under subsection (a)(5) of this section with respect to a violation
of, or the enforcement of, parts 2 and 3 of this subtitle (relating to participation,
vesting, and funding), only if--
(A) requested
by the Secretary of the Treasury, or
(B) one or
more participants, beneficiaries, or fiduciaries, of such plan request in
writing (in such manner as the Secretary shall prescribe by regulation) that
he exercise such authority on their behalf.
In the case of such a request under this paragraph he may exercise
such authority only if he determines that such violation affects, or such
enforcement is necessary to protect, claims of participants or beneficiaries
to benefits under the plan.
(2) The Secretary
shall not initiate an action to enforce section 1145 of this title.
(3) The Secretary
is not authorized to enforce under this part any requirement of part 7 against
a health insurance issuer offering health insurance coverage in connection
with a group health plan (as defined in section 1191b(a)(1) of this title).
Nothing in this paragraph shall affect the authority of the Secretary
to issue regulations to carry out such part.
(c) Administrator's
refusal to supply requested information;
penalty for failure to provide annual report in complete form
(1) Any administrator
(A) who fails to meet the requirements of paragraph (1) or (4) of section
1166 of this title or section 1021(e)(1) of this title with respect to a participant
or beneficiary, or (B) who fails or refuses to comply with a request for any
information which such administrator is required by this subchapter to furnish
to a participant or beneficiary (unless such failure or refusal results from
matters reasonably beyond the control of the administrator) by mailing the
material requested to the last known address of the requesting participant
or beneficiary within 30 days after such request may in the court's discretion
be personally liable to such participant or beneficiary in the amount of up
to $100 a day from the date of such failure or refusal, and the court may
in its discretion order such other relief as it deems proper.
For purposes of this paragraph, each violation described in subparagraph
(A) with respect to any single participant, and each violation described in
subparagraph (B) with respect to any single participant or beneficiary, shall
be treated as a separate violation.
(2)
The Secretary may assess a civil penalty against any plan administrator of
up to $1,000 a day from the date of such plan administrator's failure or refusal
to file the annual report required to be filed with the Secretary under section
1021(b)(4) of this title. For purposes of this paragraph, an annual report
that has been rejected under section 1024(a)(4) of this title for failure
to provide material information shall not be treated as having been filed
with the Secretary.
(3) Any employer
maintaining a plan who fails to meet the notice requirement of section 1021(d)
of this title with respect to any participant or beneficiary or who fails
to meet the requirements of section 1021(e)(2) of this title with respect
to any person may inthe court's discretion be liable to such participant or
beneficiary or to such person in the amount of up to $100 a day from the date
of such failure, and the court may in its discretion order such other relief
as it deems proper.
(4) The Secretary
may assess a civil penalty of not more than $1,000 for each violation by any
person of section 1021(f)(1) of this title.
(5) The Secretary
may assess a civil penalty against any person of up to $1,000 a day from the date of the person's
failure or refusal to file the information required to be filed by such person
with the Secretary under regulations prescribed pursuant to section 1021(g)
of this title.
(6)
If, within 30 days of a request by the Secretary to a plan administrator for
documents under section 1024(a)(6) of this title, the plan administrator fails
to furnish the material requested to the Secretary, the Secretary may assess
a civil penalty against the plan administrator of up to $100 a day from the
date of such failure (but in no event in excess of $1,000 per request).
No penalty shall be imposed under this paragraph for any failure resulting
from matters reasonably beyond the control of the plan administrator.
(7) The Secretary
and the Secretary of Health and Human Services shall maintain such ongoing
consultation as may be necessary and appropriate to coordinate enforcement
under this subsection with enforcement under section 1320b-14(c)(8) of Title
42.
(d) Status of employee benefit plan as entity
(1)
An employee benefit plan may sue or be sued under this subchapter as an entity.
Service of summons, subpena, or other legal process of a court upon
a trustee or an administrator of an employee benefit plan in his capacity
as such shall constitute service upon the employee benefit plan.
In a case where a plan has not designated in the summary plan description
of the plan an individual as agent for the service of legal process, service
upon the Secretary shall constitute such service.
The Secretary, not later than 15 days after receipt of service under
the preceding sentence, shall notify the administrator or any trustee of the
plan of receipt of such service.
(2) Any money
judgment under this subchapter against an employee benefit plan shall be enforceable
only against the plan as an entity and shall not be enforceable against any
other person unless liability against such person is established in his individual
capacity under this subchapter.
(e) Jurisdiction
(1)
Except for actions under subsection (a)(1)(B) of this section, the district
courts of the United States shall have exclusive jurisdiction of civil actions
under this subchapter brought by the Secretary or by a participant, beneficiary,
fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and
district courts of the United States shall have concurrent jurisdiction of
actions under paragraphs (1)(B) and (7) of subsection (a) of this section.
(2) Where
an action under this subchapter is brought in a district court of the United
States, it may be brought in the district where the plan is administered,
where the breach took place, or where a defendant resides or may be found,
and process may be served in any other district where a defendant resides
or may be found.
(f) Amount in controversy; citizenship of parties
The district
courts of the United States shall have jurisdiction, without respect to the
amount in controversy or the citizenship of the parties, to grant the relief
provided for in subsection (a) of this section in any action.
(g) Attorney's fees and costs; awards in actions involving delinquent contributions
(1) In any
action under this subchapter (other than an action described in paragraph
(2)) by a participant, beneficiary, or fiduciary, the court in its discretion
may allow a reasonable attorney's fee and costs of action to either party.
(2) In any
action under this subchapter by a fiduciary for or on behalf of a plan to
enforce section 1145 of this title in which a judgment in favor of the plan
is awarded, the court shall award the plan--
(A) the unpaid
contributions,
(B) interest
on the unpaid contributions,
(C) an amount
equal to the greater of--
(i) interest on the unpaid contributions,
or
(ii) liquidated
damages provided for under the plan in an amount not in excess of 20 percent
(or such higher percentage as may be permitted under Federal or State law)
of the amount determined by the court under subparagraph (A),
(D) reasonable
attorney's fees and costs of the action, to be paid by the defendant, and
(h) Service upon Secretary of Labor and Secretary
of the Treasury
A copy of
the complaint in any action under this subchapter by a participant, beneficiary,
or fiduciary (other than an action brought by one or more participants or
beneficiaries under subsection (a)(1)(B) of this section which is solely for
the purpose of recovering benefits due such participants under the terms of
the plan) shall be served upon the Secretary and the Secretary of the Treasury
by certified mail. Either Secretary shall have the right in his
discretion to intervene in any action, except that the Secretary of the Treasury
may not intervene in any action under part 4 of this subtitle. If the Secretary brings an action under subsection
(a) of this section on behalf of a participant or beneficiary, he shall notify
the Secretary of the Treasury.
(i) Administrative assessment of civil penalty
(j) Direction and control of litigation by Attorney General
In all civil
actions under this subchapter, attorneys appointed by the Secretary may represent
the Secretary (except as provided in section 518(a) of Title 28), but all
such litigation shall be subject to the direction and control of the Attorney
General.
(k) Jurisdiction of actions against the Secretary
of Labor
Suits by
an administrator, fiduciary, participant, or beneficiary of an employee benefit
plan to review a final order of the Secretary, to restrain the Secretary from
taking any action contrary to the provisions of this chapter, or to compel
him to take action required under this subchapter, may be brought in the district
court of the United States for the district where the plan has its principal
office, or in the United States District Court for the District of Columbia.
(1) In the case of--
(A) any breach
of fiduciary responsibility under (or other violation of) part 4 of this subtitle
by a fiduciary, or
(B) any knowing
participation in such a breach or violation by any other person,
the Secretary shall assess a civil penalty against
such fiduciary or other person in an amount equal to 20 percent of the applicable
recovery amount.
(2) For purposes
of paragraph (1), the term "applicable recovery amount" means any
amount which is recovered from a fiduciary or other person with respect to
a breach or violation described in paragraph (1)--
(A) pursuant
to any settlement agreement with the Secretary, or
(B) ordered
by a court to be paid by such fiduciary or other person to a plan or its participants
and beneficiaries in a judicial proceeding instituted by the Secretary under
subsection (a)(2) or (a)(5) of this section.
(3) The Secretary
may, in the Secretary's sole discretion, waive or reduce the penalty under
paragraph (1) if the Secretary determines in writing that--
(A) the fiduciary
or other person acted reasonably and in good faith, or
(B)
it is reasonable to expect that the fiduciary or other person will not be
able to restore all losses to the plan (or to provide the relief ordered pursuant to subsection (a)(9) of this section) without severe financial
hardship unless such waiver or reduction is granted.
(4) The penalty
imposed on a fiduciary or other person under this subsection with respect
to any transaction shall be reduced by the amount of any penalty or tax imposed
on such fiduciary or other person with respect to such transaction under subsection
(i) of this section and section 4975 of Title 26.
(m) Penalty for improper distribution
In the case
of a distribution to a pension plan participant or beneficiary in violation
of section 1056(e) of this title by a plan fiduciary, the Secretary shall
assess a penalty against such fiduciary in an amount equal to the value of
the distribution. Such penalty shall
not exceed $10,000 for each such distribution.
' 1144. Other laws
(a) Supersedure; effective
date
(b) Construction and application
(1) This section
shall not apply with respect to any cause of action which arose, or any act
or omission which occurred, before January 1, 1975.
(2)(A) Except
as provided in subparagraph (B), nothing in this subchapter shall be construed
to exempt or relieve any person from any law of any State which regulates
insurance, banking, or securities.
(B) Neither
an employee benefit plan described in section 1003(a) of this title, which
is not exempt under section 1003(b) of this title (other than a plan established
primarily for the purpose of providing death benefits), nor any trust established
under such a plan, shall be deemed to be an insurance company or other insurer,
bank, trust company, or investment company or to be engaged in the business
of insurance or banking for purposes of any law of any State purporting to
regulate insurance companies, insurance contracts, banks, trust companies,
or investment companies.
(3) Nothing
in this section shall be construed to prohibit use by the Secretary of services
or facilities of a State agency as permitted under section 1136 of this title.
(4) Subsection (a) of this section shall
not apply to any generally applicable criminal law of a State.
(5)(A) Except
as provided in subparagraph (B), subsection (a) of this section shall not
apply to the Hawaii Prepaid Health Care Act (Haw.Rev.Stat. ' ' 393- 1 through 393-51).
(B) Nothing
in subparagraph (A) shall be construed to exempt from subsection (a) of this section--
(i) any State
tax law relating to employee benefit plans, or
(ii) any
amendment of the Hawaii Prepaid Health Care Act enacted after September 2,
1974, to the extent it provides for more than the effective administration
of such Act as in effect on such date.
(C) Notwithstanding
subparagraph (A), parts 1 and 4 of this subtitle, and the preceding sections
of this part to the extent they govern matters which are governed by the provisions
of such parts 1 and 4, shall supersede the Hawaii Prepaid Health Care Act
(as in effect on or after January 14, 1983), but the Secretary may enter into
cooperative arrangements under this paragraph and section 1136 of this title
with officials of the State of Hawaii to assist them in effectuating the policies
of provisions of such Act which are superseded by such parts 1 and 4 and the
preceding sections of this part.
(6)(A) Notwithstanding
any other provision of this section--
(i) in the
case of an employee welfare benefit plan which is a multiple employer welfare
arrangement and is fully insured (or which is a multiple employer welfare
arrangement subject to an exemption under subparagraph (B)), any law of any
State which regulates insurance may apply to such arrangement to the extent
that such law provides--
(I) standards,
requiring the maintenance of specified levels of reserves and specified levels
of contributions, which any such plan, or any trust established under such
a plan, must meet in order to be considered under such law able to pay benefits
in full when due, and
(II) provisions
to enforce such standards, and
(ii) in the
case of any other employee welfare benefit plan which is a multiple employer
welfare arrangement, in addition to this subchapter, any law of any State
which regulates insurance may apply to the extent not inconsistent with the
preceding sections of this subchapter.
(B)
The Secretary may, under regulations which may be prescribed by the Secretary,
exempt from subparagraph (A)(ii), individually or by class, multiple employer
welfare arrangements which are not fully insured. Any such exemption may be granted with respect to any arrangement
or class of arrangements only if such arrangement or each arrangement which
is a member of such class meets the requirements of section 1002(1) and section
1003 of this title necessary to be considered an employee welfare benefit
plan to which this subchapter applies.
(C) Nothing
in subparagraph (A) shall affect the manner or extent to which the provisions
of this subchapter apply to an employee welfare benefit plan which is not
a multiple employer welfare arrangement and which is a plan, fund, or program
participating in, subscribing to, or otherwise using a multiple employer welfare
arrangement to fund or administer benefits to such plan's participants and
beneficiaries.
(D) For purposes
of this paragraph, a multiple employer welfare arrangement shall be considered
fully insured only if the terms of the arrangement provide for benefits the
amount of all of which the Secretary determines are guaranteed under a contract,
or policy of insurance, issued by an insurance company, insurance service,
or insurance organization, qualified to conduct business in a State.
(7) Subsection
(a) of this section shall not apply to qualified domestic relations orders
(within the meaning of section 1056(d)(3)(B)(i) of this title), qualified
medical child support orders (within the meaning of section 1169(a)(2)(A)
of this title), and the provisions of law referred to in section 1169(a)(2)(B)(ii)
of this title to the extent they apply to qualified medical child support
orders.
(8)
Subsection (a) of this section shall not be construed to preclude any State
cause of action--
(A) with
respect to which the State exercises its acquired rights under section 1169(b)(3)
of this title with respect to a group health plan (as defined in section 1167(1)
of this title), or
(B) for recoupment
of payment with respect to items or services pursuant to a State plan for
medical assistance approved under title XIX of the Social Security Act [42
U.S.C.A. ' 1396 et seq.] which would not
have been payable if such acquired rights had been executed before payment
with respect to such items or services by the group health plan.
(9) For additional
provisions relating to group health plans, see section 1191 of this title.
(c) Definitions
For purposes
of this section:
(1) The term
"State law" includes all laws, decisions, rules, regulations, or
other State action having the effect of law, of any State. A law of the United States applicable only
to the District of Columbia shall be treated as a State law rather than a
law of the United States.
(2)
The term "State" includes a State, any political subdivisions thereof,
or any agency or instrumentality of either, which purports to regulate, directly
or indirectly, the terms and conditions of employee benefit plans covered
by this subchapter.
(d) Alteration, amendment, modification, invalidation, impairment,
or supersedure of any law of the United States prohibited
Nothing in
this subchapter shall be construed to alter, amend, modify, invalidate, impair,
or supersede any law of the United States (except as provided in sections
1031 and 1137(c) of this title) or any rule or regulation issued under any
such law.