Date: January 19, 2016

Issue: Retirement

To: U.S. Department of Labor

Filing Type: Regulatory

Description: A number of states are attempting to expand retirement coverage by implementing state legislation for retirement programs for private employers. These programs range from mandatory programs to open exchanges. The implementation of certain programs is conditioned on them not being found to be ERISA plans. Further, there is concern about the state legislation being preempted by ERISA. The DOL has issued two pieces of guidance to address these issues. The Proposed Regulation pertaining to Savings Arrangements Established by States for Non-Governmental Employees (“Proposed Regulation”) creates a safe harbor for these state retirement programs to not be considered “employee benefit plans” for purposes of ERISA. While the ultimate determination of ERISA preemption is up to the courts, the objective of the guidance is to reduce the risk of the state programs being found preempted.

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