ERISA grants claimants a private right of action to recover benefits due to them or to obtain “appropriate equitable relief” to enforce statutory obligations, including disclosure requirements and fiduciary duties. This civil enforcement mechanism puts teeth in the disclosure regime, as the courts have found that an incomplete or erroneous description of plan terms can sometimes bind the plan or trigger fiduciary liability. Disclosure of plan finances may deter fiduciary misconduct. Should deterrence fail, disclosure provides plan participants and beneficiaries the information they need to monitor plan administration to enforce their rights. Disclosure also gives workers the information to evaluate their employment and retirement options, allowing them to adjust their personal financial affairs to the employer’s program. Appreciating pension plan limits enables participants to determine the extent of additional individual savings needed to provide sufficient resources in retirement. Knowledge about welfare benefits assists workers making decisions about their need to save for health care costs not covered by the employer’s plan, or to secure additional life or disability insurance. This planning function promotes economic efficiency.

Involvement of employers in the provision of health care in the United States has a long history. Employer-mediated health insurance has certain advantages compared to an individual market for health insurance. Employment-based insurance reduces the risk of adverse selection, allows workers to benefit from the expertise and buying power of the employer, and helps ameliorate cognitive biases that might lead workers to under-insure. Prior to passage of the Affordable Care Act (ACA), ERISA did little to affirmatively regulate the content of health benefit plans, and ERISA’s broad preemptive reach posed a significant obstacle to states attempting to impose content controls. The passage of the ACA and its conforming amendments to ERISA changed matters importantly but not completely; various ACA reforms now affect benefit plans directly or indirectly, while leaving largely in place ERISA’s overall scheme of regulation. Future reform efforts – whether single-payer (Medicare for All) or a public option – may very well change that, but for now ERISA retains its potency as a health insurance regulatory statute.

ERISA preemption is broad and bewildering. The statute’s language is of little help and the Supreme Court has struggled to identify intelligible extra-textual limits on ERISA’s preemptive reach. ERISA’s express preemption exerts force largely through the "relate to" clause, which broadly preempts all laws that bear too closely on employee benefit plans; the savings clause, which saves from preemption laws that regulate banking, securities, or insurance; and the deemer clause, which prevents states from regulating plans as insurers. ERISA also impliedly preempts state laws that conflict with its provisions or frustrate its objectives. More fruitful than parsing the Court’s decisions is to focus on the categories of laws the Court has found preempted, namely, laws affecting the benefits plans must offer, laws affecting the uniform administrative practice of plans, and laws supplementing ERISA’s remedies. The coherence of the Court’s jurisprudence might be improved were it to read ERISA’s express preemption provisions as simple field preemption, with legitimate state regulation in fields outside of employee benefits to be superseded only by the application of standard principles of conflict and obstacle preemption.

ERISA permits distribution of pension benefits only to certain persons and at certain times. A vested participant does not normally have an immediate right to her accumulated saving, nor can she direct its payment to someone else. Pension plans are designed to provide workers with a secure source of retirement income, not to facilitate general purpose savings. Therefore, access to pension savings is restricted, either by the terms of the plan or by ERISA itself. ERISA’s rules governing pension plan distributions address three issues. First, the timing of distributions is restricted. Second, the anti-alienation rule generally limits the recipients of distributions to the participant and her beneficiaries, although a spouse, former spouse, or dependent child of the participant may enforce certain state domestic relations law claims against the pension by means of a qualified domestic relations order (QDRO). And third, the participant’s spouse is, in effect, designated primary beneficiary.

ERISA’s underdeveloped civil enforcement mechanism, section 502(a), has generated extensive litigation. Judicially crafted strictures on the relief available to participants have arisen with respect to standing, scope of judicial review, causes of action, and remedies. While the Supreme Court has held those with a colorable claim to benefits have standing, precisely what that means has proven elusive. Judicial review of denied claims is strictly constrained. Court access requires that participants have exhausted internal review processes, and if the plan grants the administrator discretion to determine eligibility for benefits or construe the plan’s terms (which is virtually always), judicial review is restricted to a cursory scan for abuse of discretion. Deferential review survives even if the administrator is conflicted: lower courts are instructed to consider the conflict merely as one factor in and overall assessment of whether discretion was abused. Finally, the Court has held that ERISA does not permit the full panoply of damages one would expect in the aftermath of contractual or fiduciary breach. Consequential damages are unavailable for denied claims, and equitable relief for fiduciary breach is limited to what was typically available in equity in the days of the divided bench.

ERISA generally applies to any “employee benefit plan” established or maintained by an employer or a labor union. Whether a given benefit arrangement qualifies as a plan has been challenged on three grounds: transience, indefiniteness, or restricted coverage. ERISA applies only to plans that provide benefits to employees or their families, with the meaning of employee under ERISA tracking the common-law definition. The nature and intensity of ERISA’s regulation largely depends upon whether the plan provides retirement income or systematically defers compensation until termination of employment or beyond (a pension plan), or whether it provides any of certain other benefits specifically listed by the statute (a welfare plan). Finally, ERISA exempts from its coverage a few benefit arrangements that otherwise meet the statutory definition of an employee benefit plan. The most important exceptions are for unfunded executive deferred compensation programs (so-called top hat plans), and for plans sponsored by government or religious organizations.

ERISA’s pension plan content controls constrain the terms of most deferred compensation programs in several broad areas. At the outset, the accumulation of pension savings is influenced by rules governing eligibility for plan participation, the rate at which benefits accrue under defined benefit plans, and when benefits vest (become nonforfeitable). To preserve a system of voluntary plan sponsorship, most matters were left unregulated, including the central design issues of a pension plan, namely, the extent of workforce coverage and the level of benefits. Where it chose to regulate, Congress restricted but did not eliminate freedom of contract. Instead of mandating particular plan features, it set minimum standards for certain key terms, leaving sponsors the flexibility to exceed the baseline. Legislative intervention was not directed to ensuring a particular level of retirement income. Instead, reliability is the principle animating ERISA’s pension content controls. The employer may craft the program to cover as many or as few workers as desired, at any benefit level it chooses, but once a pension promise is made, the statute backs it up by restricting plan terms that would undercut the commitment.

The special tax treatment accorded qualified deferred compensation implicates traditional tax policy concerns about equity, efficiency, and administrability. Consequently, the Code imposes tax controls on qualified plans that are distinct from and apply in addition to ERISA’s pension content controls. The favorable tax treatment of qualified plans provides an inducement to saving, and the tax controls seek to structure the incentive so that it induces retirement savings that would not otherwise occur. The central mechanism for channeling public assistance into additional savings, the nondiscrimination rules, are highly sensitive to workforce composition, income tax rates, and the availability of other tax-sheltered savings opportunities. Another set of controls indirectly limit the amount of the tax subsidy: caps on qualified plan savings, advance funding limits, and distribution timing constraints. In combination, the tax controls seek to properly target and control the tax subsidy. Against that framework, the chapter concludes by examining a number of proposals that would reform or replace the nondiscrimination rules, including some observations on the future of the (semi-) private pension system.

ERISA regulates most benefit plans offered by private employers, both pension plans and welfare plans. Pension plans systematically defer compensation until termination of employment (or longer), and welfare plans provide other types of benefits designated by statute, of which health insurance is the most costly by far. Because of the importance of ensuring retirement income, health care, and other socially valuable welfare benefits (such as disability income and life insurance), the Code permits plans with certain features to “qualify” for favorable tax treatment, on the theory that such a subsidy encourages provision of benefits that would not otherwise be available. ERISA’s chief policy aims are to promote informed decision making by workers; to prevent mismanagement and abuse of plan assets by administrators; to protect worker reliance on the benefit promises made; and to preserve employer choice with regard to offering benefits and, provided that minimum standards are met, in tailoring benefit programs to serve the needs of the business.