Can You Hear Me? Will the Diminishing Scope of ERISA’s Anti-Retaliation Provision Drown the Cries of Whistleblowers?
By Malena Kinsman.
In 1974, Congress enacted the Employee Retirement Income Security Act (ERISA) to protect the retirement benefits of America’s working men and women. ERISA imposes fiduciary responsibilities upon the administrators of employee retirement plans and establishes disclosure guidelines so employees receive information about the funding and vesting provisions of their plans. These guidelines safeguard benefits and ensure employees enjoy a financially secure retirement.
To protect the retirement rights of employees, Congress made it unlawful for an employer to interfere or discriminate against an employee for exercising the rights guaranteed under ERISA. Nevertheless, the mishandling of employee retirement plans remains and employees are frequently denied benefits to which they are entitled. Therefore, to detect unlawful employer behavior and provide effective enforcement of ERISA, Congress made it unlawful for employers to take adverse employment actions against employees who have “given information or [have] testified or [are] about to testify in any inquiry or proceeding relating to [ERISA].” This provision, also known as ERISA’s whistleblower provision, protects employees engaged in legal proceedings; however, it is unclear whether this provision extends protection to employees who voice internal workplace complaints to employers.
Currently, there is a deeply divided split among the circuit courts of appeals as to whether ERISA’s whistleblower provision extends protection to internal workplace complaints. On March 7, 2011, the Supreme Court of the United States denied a petition for writ of certiorari to determine the exact scope of ERISA’s whistleblower provision. With the Supreme Court’s recent denial of certiorari, the scope of ERISA’s whistleblower provision will continue to be a current and developing issue of contention among the circuit courts.