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Senator Tom Harkin (D-IA) is leading the way in Washington when it comes to championing the rights of current and future retirees. His proposal for USA Retirement Funds has received widespread acclaim as a common-sense, innovative way of providing retirement security to millions of American workers who do not have a workplace pension or 401(k) plan. Read our statement about Senator Harkin’s proposal.
Little noticed is that fact that Senator Harkin’s bill also includes a provision to ensure that whistleblowers who alert company or plan officials to violations of the federal private pension law are protected from retaliatory actions by their employers.
The Employee Retirement Income Security Act of 1974, commonly known as ERISA, includes a provision that protects participants in retirement and health plans from being demoted, discharged, or otherwise discriminated against for exercising their rights under the law. This provision, Section 510 of ERISA, also provides protection to employees who exercise their rights as whistleblowers. In other words, when employees complain that their benefits plan is being operated in violation of the law, there are protections from being fired or otherwise discriminated against by employers.
However, the language of the statute is unclear as to whether employees qualify for these protections if they file internal complaints with their employer or plan administrator, rather than with an outside governmental authority.
Courts that have been tasked with resolving this ambiguity have taken different positions. Some federal courts have chosen to interpret the statute broadly, deciding that the whistleblower protection provision applies to employees who make internal as well as external complaints. Other courts have decided that making internal complaints only is not enough to be eligible for whistleblower protection.
Senator Harkin’s bill would take this matter out of the courts’ hands and make any oral or written complaint made by an employee to their benefit plan’s administrators, their employer, or any external authority an action sufficient to guarantee whistleblower protection for that employee. Section 404 of S.1979, the USA Retirement Funds Act of 2014, clarifies that individuals who report violations of the federal private pension law to company or plan officials would be protected against retaliation.
This is a small but important step that will empower employees to assert their retirement and health-related rights without the fear of being fired or demoted by their employer.
