By: T. Kelly McKee
A recent case before the Fifth Circuit Court of Appeals1 determined that a “Project Completion Incentive” applying to employees on a construction project (the “Plan”) was not governed by the Employee Retirement Income Security Act of 1974 (“ERISA”).2
Former laborer Employees of the construction manager Employer filed a lawsuit in Louisiana State Court asserting that the Employer was required to pay them the “Project Completion Incentive” under the Plan for the time spent on the project—despite conceding that they quit the project before completion and were therefore not eligible for the incentive under the Plan terms.3 The Employees asserted that the Plan’s terms violated Louisiana State law as an illegal wage forfeiture agreement.4 The case was removed to federal court—where if ERISA governed, the Employees would have no claim.5
The Fifth Circuit Court of Appeals determined that the Plan was properly considered a severance, and that some severance plans are governed under ERISA.6 The Fifth Circuit Court of Appeals determined that a severance plan is only covered under ERISA if it requires an “ongoing administrative program.”7
In this matter, the Fifth Circuit Court of Appeals determined that the plan did not require an “ongoing administrative program,” because:
- The Plan only called for a single payment (i.e., no assumption of an ongoing administration responsibility);8
- The payment required only a simple calculation (i.e., not a complex calculation of benefits as is normally found in ERISA);9
- The Plan’s triggering events were tied to a single project (i.e., not multiple infrequent triggering events to manage);10
- The Plan did require some discretion to determine whether an employee was transferred, laid off due to reduction-in-force, or quit; but the “modicum of discretion” required was not enough to “turn a severance agreement into an ERISA plan”—especially when some decisions were clear (i.e., an employee who quits).11
The Fifth Circuit Court of Appeals found that the Plan did not have an ongoing administrative scheme and remanded to the District Court of Appeals, to be returned to the State Court for lack of subject matter jurisdiction.12
The Employer will now have to continue this litigation in state court under Louisiana State law to determine if the Plan qualifies as an illegal wage forfeiture agreement.
This decision indicates that in writing or reviewing a project completion incentive or other labor retention incentive, a construction employer may have some things to consider. To wit:
- Your construction employee completion/retention incentives, may qualify for ERISA and thus be subject to statutory or regulatory oversight;
- Upside—they are not subject to state law claims;
- Downside—due to more involved regulations, administrative management may be required.
- Your construction employee “completion incentives,” may qualify as a severance or be covered by another state law wage statute, rule, or regulation;
- Upside—they are not subject to ERISA; and
- Downside—they may be subject to local laws on wages that you should be aware of when drafting and executing.
While these considerations are not a reason to stop using these incentives (the large upside or maintaining a consistent workforce is hard to ignore), in the world of construction employment, it is never a bad time to review your current contracts (employment or otherwise) and determine how they may be interpreted so that you are planning appropriately and mitigating risk appropriately.
It is always a good idea to undertake reviewing or drafting contracts, agreements, or plans with qualified counsel.
1 Atkins v. CB&I, L.L.C., 20-30004, 2021 WL 1085807, at *1 (5th Cir. Mar. 22, 2021)
2 “The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established retirement and health plans in private industry to provide protection for individuals in these plans. [¶] ERISA requires plans to provide participants with plan information including important information about plan features and funding; provides fiduciary responsibilities for those who manage and control plan assets; requires plans to establish a grievance and appeals process for participants to get benefits from their plans; and gives participants the right to sue for benefits and breaches of fiduciary duty.” See ERISA, DOL.Gov, https://www.dol.gov/general/topic/health-plans/erisa (last visited March 24, 2021); see also 29 U.S.C.A. § 1001, et. seq.
3 Atkins, 2021 WL 1085807, at *1. The Plan stated in relevant part: “[Employer] will pay to CRAFT employees who meet the eligibility requirements below a Project Completion Incentive payment equal to five percent (5%) of the employee’s total earnings … earned while working for [Employer]… as a retention incentive to continue working on the Project until their role on the project is complete. The Project Completion Incentive is calculated based on total earnings earned by the employee at the Project site beginning the date employment begins at site until the eligible employee is laid off in a reduction-in-force or [Employer] transfers the employee from the Project site when the employee’s role on the project is complete. Employees who quit, transfer or terminate their employment for any other reason are not eligible for the Project Completion Incentive payment. [Employer] will pay the Incentive payment to an eligible employee on his/her final paycheck.” Id. (emphasis in original).
4 Id. (citing LA. STAT. ANN. § 23:631, 23:632, 23:634).
6 Id. at *2.
7 Id. (citing Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12 (1987)) (“The Court held that ERISA did not govern this law because it required only a ‘one-time, lump-sum payment triggered by a single event [which] requires no administrative scheme whatsoever.’ ERISA governs only for a severance plan that requires an ‘ongoing administrative program.’ The ‘complex administrative activities’ typical of such a plan may include ‘determining the eligibility of claimants, calculating benefit levels, making disbursements, monitoring the availability of fund for benefit payments, and keeping appropriate records in order to comply with applicable reporting requirements.’” (internal citations omitted)).
9 Id. at *3.
10 Id. The Fifth Circuit of Appeals considered this point in finer detail than the preceding, because Fort Halifax Packing Co. was all triggered by a single plant closing, which impacted all employees at the same time. However, the Plan at issue had multiple different triggers (i.e., reduction in work force, transfer by Employer, project completion). Regardless of the numerous triggers, the Fifth Circuit of Appeals determined that since the Plan only dealt with the singular project, these were not the types of multiple triggers that indicate ERISA may govern. Id. (“payments will not be triggered with anything nearing the frequency of typical retirement, health, or even severance plans when employees become eligible for benefits at different times throughout a company’s existence.”).
11 Id. at *3–4.
12 Id. at *4 (“Consistent with the lack of complexity needed to answer the “who” and “how much” questions about the bonus, we do not see any special administrative apparatus dedicated to overseeing the Plan. A plan is more likely to be governed by ERISA when it includes administrative procedures, such as procedures for handling claims and appeals, is administered on a large-scale to many employees, requires continuous monitoring of payees, or requires additional oversight once the benefit has been paid, either because of continuing insurance benefits or the possibility of clawing back severance payments if the employee returns to work[.] The record shows none of that here.” (internal citations omitted)).