Employment practices and employee benefit-related lawsuits are on the rise — and employers have to be eternally vigilant when it comes to meeting their compliance obligations as plan sponsors.
Take the case of Visteon, a global automotive industry supplier, which outsourced its payroll and enrollment/disenrollment functions to outside plan administrators.
But because of internal mistakes at the firms that Visteon outsourced these noncore HR functions to, some of its former employees who should have received COBRA eligibility notices after leaving the firm never received them. At first it was just a handful, but ultimately 741 co-workers signed on to a class-action lawsuit.
Visteon argued in court that it was not its own mistakes that had caused the error, and that it had made a good-faith effort to hire outside experts to take over this function for them. Payroll and enrollment, after all, are not core competencies for an auto parts supplier, the company said, and it had been relying on the expertise of these other payroll companies to properly execute these functions and provide these notices.
The court didn’t buy Visteon’s argument. Rather, it held the company responsible in 2013 for poor internal tracking systems, negligence in overseeing its third party administrators, and failure to accept responsibility for its COBRA notification efforts.
That exposed them to the statutory penalty of $110 per worker per day for failure to provide notification.
In the end, for doing what tens of thousands of employers are doing nationwide — relying on third party administrators to handle payroll functions that are regulated under COBRA — Visteon was slapped with $1.8 million in penalties.
Employers are frequent lawsuit targets
As much as companies rely on their employees to generate profits, simply having them around and administering their benefit plans potentially exposes employers to significant possible liability.
According to a survey from insurer CNA, employment-related disputes are the fastest-growing category of civil lawsuits in America.
Employers face risk from the potential of lawsuits employees may bring for alleged failure to fulfill their fiduciary duties as sponsors of retirement plans under ERISA, for example, or for accidental or unauthorized leaks of personally identifiable information, which carries significant penalties under HIPAA.
Sponsors of defined contribution pension plans, such as 401(k)s, are particularly frequent targets of lawsuits for various fiduciary failures, errors or omissions.
Protecting your firm from legal action
So how can employers protect themselves against the potential costs of employee benefit-related litigation? You should:
- Carefully monitor your plan third party administrators. Insist that they document their own compliance practices to you. Don’t take their word for it.
- Reconcile your own lists of recently departed employees with your payroll company’s COBRA notifications.
- Understand that your commercial general liability insurance policy usually will not cover you against liability arising from improper administration of employee benefit plans, ERISA, COBRA, USERRA, wage and hour laws, Title VII related lawsuits, and the like.
- Consider employment practices liability insurance. This coverage will often protect against lawsuits like this and cover legal expenses, and even judgments.
- Conduct regular reviews with advisers of investments in pension and 401(k) plans. Investments should be reviewed at least annually — and quarterly is not unusual.
- Ensure that fees paid to 401(k) and other plan administrators are not excessive. You don’t have to go with the cheapest provider (that can be trouble, too). But if you do choose a higher-fee vendor, document why you made that decision so that you can show your reasoning in court and defend your decision-making as sound and prudent.
- Invest in data security and HR compliance expertise.