“ERISA” stands for the Employee Retirement Income Security Act, which is the federal law that governs retirement, pension, health insurance and other employee benefit plans of private sector employees. ERISA has a provision that states:
It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against [a plan] participant or beneficiary for exercising any right to which he is entitled [under ERISA] . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled . . . . It shall [also] be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to [ERISA].Courts have disagreed about whether the italicized sentence prohibits retaliation against an employee who makes an unsolicited inquiry about his or her pension. The U.S. Court of Appeals for the Fourth Circuit (which covers Maryland, Pennsylvania, West Virginia, Virginia and North and South Carolina) ruled nearly ten years ago that ERISA does not make such retaliation unlawful. SeeKing v. Marriott Int'l, Inc., 337 F.3d 421, 427 (4th Cir. 2003), meaning you employer can legally fire you if you simply ask about your pension rights. Several Circuit Courts have disagreed with the Fourth Circuit’s decision in King. Most recently, the Seventh Circuit Court of Appeals, in George v. Junior Achievement of Central Indiana, Inc., 694 F.3d 812 (7th Cir. Sept. 4, 2012), disagreed and stated: “If one is . . . discharged for raising the problem, the process of giving information or testifying is interrupted at its start: the anticipatory discharge discourages the whistleblower before the whistle is blown.” The facts of George are compelling. The U.S. Department of Labor has taken the appropriate and correct position that ERISA does prohibit retaliation against an employee‘s pension inquiry. See this link. In a brief filed in support of the fired employee in the Seventh Circuit case, the Department of Labor stated as follows:
If unsolicited complaints or inquiries do not receive protection, employee participants and fiduciaries will inevitably be stymied in their efforts to address and resolve problems related to their employee benefit plans. Employees will be required to await a "request for information" to be protected from punitive treatment; meanwhile, legitimate complaints and inquiries about the employees' plans and potential ERISA violations will have gone unaddressed. In the process, ERISA enforcement, which depends on employees coming forward with complaints without fear of retaliation, will likewise be stymied, contrary to Congressional intent. Thus, to avoid fostering a work environment that risks punishing employees for helping fulfill ERISA's protective purpose, and thereby frustrating effective enforcement of ERISA, this Court should interpret section 510 to protect employees from retaliation for making unsolicited complaints. …
Section 510 employs broad language to protect employees from retaliation, and liberally interpreting these protections is consistent with statutory construction principles. See Hashimoto, 999 F.2d at 411 (Section 510 "is clearly meant to protect whistle blowers. It may be fairly construed to protect a person in Hashimoto's position if, in fact, she was fired because she was protesting [through unsolicited complaints] a violation of law in connection with an ERISA plan."); … Broadly construed, section 510's protection for "any person" who has "given information . . . in any inquiry" encompasses a plan participant's complaints about alleged wrongdoing to corporate or plan officials directly or indirectly responsible for plan management, or to a government agency responsible for enforcing ERISA, and, indeed, the receipt of such complaints will generally trigger a corresponding duty to investigate. It is, therefore, completely natural to interpret "information" given in an "inquiry" to include unsolicited complaints. Hopefully, the Fourth Circuit will have an occasion to reevaluate its position in light of developing law.
