I was recently asked what happens if an employee is injured at work, and the employer is not at fault. For example, an employee trips over a chair that is properly tucked into a table, and the employee is injured. The employer was not at fault for the employee’s fall – after all, the chair was properly placed – and yet the employee could still be entitled to workers’ compensation. Why is that?
“Every employee benefit plan shall be established and maintained pursuant to a written instrument.” That is the first sentence in ERISA’s fiduciary responsibility provision. The ERISA-mandated “written instrument” – the official plan document – is a powerful document; it defines the employer’s contractual undertaking with respect to the plan’s participants. In recent decisions, courts have distinguished between a writing that is enforceable as “the plan” and other plan-related instruments such as the summary plan description (“SPD”), an insurance policy, or an administrative services agreement (“ASA”).
Long-standing labor law has set forth criterion as to when an employer is a statutory successor to a prior employer and what, if any, obligations are owed by such a successor to a union which represented the predecessor’s employees. Generally, the question of successorship status is determined by whether a majority of the subsequent employer’s workforce at a facility is composed of employees who were represented by the union while employed by the predecessor. If they were, then the second employer must recognize and bargain with the union over the employees’ terms and conditions of employment.