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The Benefits Landscape Today

As the Introductions to the prior editions of Employee Benefits Law demonstrated, the passage of the Employee Retirement Income Security Act of 1974 (ERISA) was, to quote the Beatles, a “long and winding road.” Along the way, many important issues were flagged, analyzed, debated, but ultimately shelved by the Congressional drafters; perhaps they were too hard to resolve technically at the time, or the fractious jurisdictional rivalries within both the Executive and Legislative branches made consensus elusive, or the framers had neither the stamina nor the political will to finally resolve all of the key issues. As a result, not only have we followed an uneven path toward achieving ERISA’s original objectives but also, as the employee benefits landscape has evolved, some of these objectives have changed with the passage of time or in response to emerging issues. The changes in the retirement marketplace discussed in the Introduction to the Third Edition have continued to accelerate. In the pension world, the continued shift from defined benefit plans to defined contribution plans, the increase in self-directed retirement accounts, and the tsunami of plan assets that have moved out of the qualified plan universe into the largely unregulated IRA marketplace as a result of rollovers have all exposed problems in the system that pose real risks for plan participants and individuals struggling to save for retirement.

At the same time, the growth in importance of health and welfare benefits to working individuals and their families has highlighted the need to protect these benefits and spawned sometimes lively discussion of new means to do so.

With respect to all these objectives, we previously identified the growing importance of regulation and litigation in filling in the gaps left by the drafters and addressing the new issues that have arisen as a result of the marketplace evolution described above. This Fourth Edition is replete with examples of this phenomenon both in the context of ERISA-covered pension plans and in the evolving health care marketplace shaped through significant regulations affecting group health plans under laws such as the Patient Protection and Affordable Care Act of 2010 (the Affordable Care Act or ACA), or the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).