Guest Statler Posted December 29, 2014 Share Posted December 29, 2014 I have a client setting up an HRA plan who wants to exclude those under age 25. It looks like this is OK under 105(h). However, she has somebody else saying the limit is 21 because of ERISA. I think she is looking at retirement plan not health plan so the 21 does not apply. Is there a link to the age 21 for an ERISA HRA? Link to comment Share on other sites More sharing options...
GBurns Posted December 30, 2014 Share Posted December 30, 2014 I doubt that age discrimination would be allowed under either 105 or 125, but truthfully, I have not looked because I think that HIPAA, ERISA, FLSA, EEOC and even state law that would prohibit it in a few states. Also for public entities and certain other employers there is the Age Act. From EEOC: http://www.eeoc.gov/laws/types/age.cfm This article cover some of the main issues, but unfortunately does not give cites or links: http://www.shrm.org/templatestools/hrqa/pages/offeringdifferentbenefitsfordifferentemployees.aspx Age is not an acceptable classification under 105, 125 or HIPAA. While age is not specifically addressed, the issue of similarly situated employees is prominent: http://www.dol.gov/ebsa/faqs/faq_hipaa_ND.html Then there is ERISA 510 and FLSA 18C which both prohibit interference, denial or restricting an employees right to a benefit. Then there is ACA. If your client plans to go ahead, I suggest that they do so only after seeking competent legal advice. George D. Burns Cost Reduction Strategies Burns and Associates, Inc www.costreductionstrategies.com(under construction) www.employeebenefitsstrategies.com(under construction) Link to comment Share on other sites More sharing options...
Guest Statler Posted December 30, 2014 Share Posted December 30, 2014 I think they got the age 25 from IRC 105(h)(3)(B)(ii) which details nondiscrimination for self-insured medical expense reimbursement plans. Excerpted below. (3) Nondiscriminatory eligibility classifications (B) Exclusion of certain employees For purposes of subparagraph (A), there may be excluded from consideration - (i) employees who have not completed 3 years of service; (ii) employees who have not attained age 25 Link to comment Share on other sites More sharing options...
GBurns Posted December 30, 2014 Share Posted December 30, 2014 One law does not necessarily negate another. George D. Burns Cost Reduction Strategies Burns and Associates, Inc www.costreductionstrategies.com(under construction) www.employeebenefitsstrategies.com(under construction) Link to comment Share on other sites More sharing options...
Peter Gulia Posted January 1, 2015 Share Posted January 1, 2015 Why does the employer desire to exclude those who happen to be younger than 25? Peter Gulia PC Fiduciary Guidance Counsel Philadelphia, Pennsylvania 215-732-1552 Peter@FiduciaryGuidanceCounsel.com Link to comment Share on other sites More sharing options...
jpod Posted January 4, 2015 Share Posted January 4, 2015 There is no Federal law ADEA violation if there is discrimination against younger employees, and any State ADEA rule to the contrary would be pre-empted by ERISA. Link to comment Share on other sites More sharing options...
GBurns Posted January 6, 2015 Share Posted January 6, 2015 I gave the EEOC link not for ADEA but for its reference to state law. State labor and employment laws are not pre-empted by ERISA. "The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination." George D. Burns Cost Reduction Strategies Burns and Associates, Inc www.costreductionstrategies.com(under construction) www.employeebenefitsstrategies.com(under construction) Link to comment Share on other sites More sharing options...
jpod Posted January 6, 2015 Share Posted January 6, 2015 No, they would be preempted by ERISA (assuming the HRA is an ERISA plan, which it would be unless it is a governmental plaln or a church plan). The Supreme Court resolved this issue maybe 30 years ago. Link to comment Share on other sites More sharing options...
GBurns Posted January 7, 2015 Share Posted January 7, 2015 ERISA preemption is not absolute, it depends on the facts and circumstances of each case. There is always an "If". "If a claim can be brought under ERISA ยง 502(a), then the state law action is completely preempted by ERISA ยง 514(a). See Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (a common law wrongful discharge claim that an employer terminated or otherwise discriminated against an employee to prevent the employee from vesting in a benefit or to prevent accrual or receipt of a benefit is preempted by ERISA ยง 510);" Why di you pick on ADEA as being the only thing applicable? George D. Burns Cost Reduction Strategies Burns and Associates, Inc www.costreductionstrategies.com(under construction) www.employeebenefitsstrategies.com(under construction) Link to comment Share on other sites More sharing options...
jpod Posted January 7, 2015 Share Posted January 7, 2015 because you suggested that exclusion of employees younger than age 25 would violate age discrimination laws Link to comment Share on other sites More sharing options...
Chaz Posted January 8, 2015 Share Posted January 8, 2015 [Copied and pasted from ABA preemption materials; Google is your friend]: State law claims of employment discrimination may not be preempted if they have a basis independent of the plan in question. Even if they directly implicate plans, such claims may not be preempted if the portion of the state statute at issue tracks a federal employment discrimination statute. Compare Shaw v. Delta Air Lines, 463 U.S. 85, 97 (1983) (ERISA preempts a state law barring pregnancy discrimination because Title VII had not yet been amended to bar such discrimination; state laws play a "significant role" in the enforcement of Title VII and stated that "to the extent that the Human Rights Law provides a means of enforcing Title VII's commands," ERISA preemption would impair Title VII. Consequently, such state laws would not be preempted because of ERISA ยง 514(d)) with Warner v. Ford Motor Co., 46 F.3d 531 (6th Cir. 1995) (state age discrimination law not preempted); Clark v. Coats & Clark, Inc., 865 F.2d 1237 (11th Cir. 1989) (same); Le v. Applied Biosystems, 886 F.Supp. 717 (N.D.Cal. 1995) (state disability discrimination claim not preempted). Link to comment Share on other sites More sharing options...
jpod Posted January 8, 2015 Share Posted January 8, 2015 Yes, the Delta case stands for the proposition that if something is not prohibited by Federal ADEA then any state law to the contrary is preempted by ERISA. Link to comment Share on other sites More sharing options...
GBurns Posted January 8, 2015 Share Posted January 8, 2015 You have a unique interpretation of Delta. How did you get ADEA into it or into Title VII? George D. Burns Cost Reduction Strategies Burns and Associates, Inc www.costreductionstrategies.com(under construction) www.employeebenefitsstrategies.com(under construction) Link to comment Share on other sites More sharing options...
jpod Posted January 8, 2015 Share Posted January 8, 2015 no offense intended but i am not sufficiently interested in the subject to continue . . . . Link to comment Share on other sites More sharing options...
Recommended Posts
Create an account or sign in to comment
You need to be a member in order to leave a comment
Create an account
Sign up for a new account in our community. It's easy!
Register a new accountSign in
Already have an account? Sign in here.
Sign In Now