State FMLA and Break In Service

[goldtpa]

Several States now have their own version of FMLA.  If an employer is too small to follow Federal FMLA but large enough to follow the state version, what is the general consensus on Break In Service for the State version of FMLA?

I called FT William, their response was that one could make a case in either direction and it would depend on who is auditing.  The DOL may point to state law while the iRS may only look to Federal law.

What is the general consensus? Do you prevent a Break based on state law or say that ERISA law trumps state law.

[Peter Gulia]

As many BenefitsLink people might say, a starting point is RTFD – read the Fabulous document.

 

This matters on your query because a plan might provide more service crediting than applicable law requires.

 

If one thinks service crediting or avoiding a break-in-service might be required by a State’s law (rather than under the plan’s provisions), the plan’s administrator might want its lawyer’s advice about whether the plan is governed by ERISA and, if so, whether ERISA preempts the State law.

 

While I don’t give advice, I’m not readily imagining how a State’s mainstream employment law about family or medical leave would be an unpreempted law that regulates insurance, banking, or securities.  ERISA § 514(b)(2)(A).

 

Is the State law you’re concerned about a generally applicable criminal law?  ERISA § 514(b)(4)?