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"Maintained pursuant to 1 or more CBAs..."


AFRB86
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ERISA Sec. 3(37) defines a multiemployer plan as "a plan—(i)to which more than one employer is required to contribute, (ii)which is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and more than one employer, and (iii)which satisfies such other requirements as the Secretary may prescribe by regulation."  

There does not seem to be a definition of what it means to be "maintained pursuant to 1 or more CBAs" in the specific context of Sec. 3(37).  

ERISA Sec. 3(40) excludes from the definition of a MEWA "any...plan or other arrangement which is established or maintained—(i) under or pursuant to one or more agreements which the Secretary finds to be collective bargaining agreements...."  

The regulations under Section 3(40) do define what it means to be "established or maintained under or pursuant to one or more agreements which the Secretary finds to be a [CBA]."  In part, this test requires that 85% of the plan's participants be covered by the CBA or CBA-adjacent.  29 CFR 2510.3-40(b).

The Section 3(40) regs state multiple times that the definition therein of what it means to be established or maintained under or pursuant to one or more CBAs applies ONLY in the context of Section 3(40).  E.g., "Nothing in or pursuant to this section shall constitute a finding for any purpose other than the exception for plans established or maintained under or pursuant to one or more collective bargaining agreements under section 3(40) of ERISA."  29 CFR 2510.3-40(a).  

My question is:  Does the definition of what it means to be "established or maintained under or pursuant to one or more collective bargaining agreements" under the Section 3(40) regs apply to Section 3(37) for multiemployer plans?  If not, is there a different definition for Section 3(37)?  

Thank you for any insight.  

 

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  • 2 weeks later...

AFRB86, I don't know if this helps, but I have never thought of this as an issue. The multiemployer plans I have worked on have all received contributions that were required under collective bargaining agreements between the local and the employer that specified the plan and the contribution rate. I have always assumed that met the 3(37) definition, in plain English. Congress was more sensitive regarding MEWAs in 3(40) because of the potential for abuse with respect to inadequately funded health plans.

Luke Bailey

Senior Counsel

Clark Hill PLC

214-651-4572 (O) | LBailey@clarkhill.com

2600 Dallas Parkway Suite 600

Frisco, TX 75034

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