45
to the extent it prohibited employers from allowing their employees to implement or change salary reduction
contributions to ERISA-covered plans via telephone or voice response system. We concluded that New York Labor
Law Section 193, by requiring written authorization for employee wage deductions of contributions or payments for
“insurance premiums, pension or health and welfare benefits,” and “similar payments for the benefit of the
employee,” clearly “relates to” benefits provided under employee benefit plans in that it is specifically designed to
affect employee benefit plans and seeks to restrict the choices of such plans with regard to the administration of their
funding policies. The Department opined that, to the extent that Section 193 is interpreted to limit, prohibit, or
regulate the funding of employee benefit plans covered by Title I of ERISA, including wage deductions to employee
benefit plans covered by Title I, it is preempted by section 514(a) of ERISA. Rev. Rul. 2002-27, 2002-1 CB 925,
May 17, 2002, modified by Rev. Proc. 2002-73, 2002-2 CB 932 confirmed that cafeteria plans may use an automatic
enrollment process whereby the employee's salary is reduced each year to pay for a portion of the group health
coverage under the plan unless the employee affirmatively elects cash. In addition, employers may treat all
participants as being in the cafeteria plan for section 415 purposes even though the plan mandates salary reduction
and coverage for uninsured participants. In this situation, the Plan provides for an automatic enrollment process so
that each new employee, and each current employee for the first plan year the automatic enrollment process is
effective is automatically enrolled in employee-only indemnity coverage, with the employee's salary reduced pretax
to pay for a portion of the cost of the coverage, unless the employee affirmatively elects cash. Alternatively, if the
employee has a spouse or child, he or she can elect family coverage. The employee receives a notice explaining the
automatic enrollment process and the employee's right to decline coverage and have no salary reduction. The notice
includes the salary reduction amounts for employee-only coverage and family coverage, procedures for exercising
the right to decline coverage, information on the time by which an election must be made, and the period for which
an election will be effective. The notice is also given to each current employee before the beginning of each
subsequent plan year, except that the notice for a current employee includes a description of the employee's existing
coverage, if any. This ruling confirmed that contributions used to purchase group health coverage under § 125 are
not included in the gross income of the employee solely because the plan uses an automatic enrollment process
whereby the employee's salary is reduced each year to pay for a portion of the group health coverage under the plan
unless the employee affirmatively elects cash.
25
Proposed Treasury Regulations 1.1215-2, confirms that a cafeteria plan must require employees to elect annually
between taxable benefits and qualified benefits. Elections must be made before the earlier of the first day of the
period of coverage or when benefits are first currently available. The determination of whether a taxable benefit is
currently available does not depend on whether it has been constructively received by the employee for purposes of
section 451. Annual elections generally must be irrevocable and may not be changed during the plan year. However,
§1.125-4 permits a cafeteria plan to provide for changes in elections based on certain changes in status. An employer
that wishes to permit such changes in elections must incorporate the rules in §1.125-4 in its written cafeteria plan.
26
Pension Protection Act of 2006, Pub. L. 109-280, encouraged the addition of automatic enrollment features in IRC
§ 401(k) plans by confirming existing automatic features were generally permitted and creating a process for adding
those features to other plans (disclosure, communications, default investments, etc.) PPA 2006 provided fiduciary
relief by amending ERISA § 404(c) to specify that automatic enrollees will be treated as exercising control over
their investments if the default investment election is consistent with Department of Labor (DOL) regulations. In
addition to regulations from both the DOL and the Internal Revenue Service (IRC), such designs have been further
encouraged by the specific publications such as the brochure: Automatic Enrollment 401(k) Plans for Small
Businesses, a joint project of the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA)
and the Internal Revenue Service (IRS), available at www.dol.gov/ebsa
. This brochure specifically endorses
automatic enrollment features in profit sharing plans qualified under IRC § 401(k) by confirming that such a plan
“provides a high level of participation”. The brochure notes that: “Approximately 30 percent of eligible workers do
not participate in their employer’s 401(k) plan. Studies suggest that automatic enrollment plans could reduce this
rate to less than 15 percent, significantly increasing retirement savings. Whether you already have a 401(k) plan or
are considering starting one, automatic enrollment 401(k) plans offer many advantages. … Helps attract and keep
talented employees … Increases plan participation among both rank-and-file employees and owners/ managers”.
See also the nondiscrimination safe harbor for automatic contribution arrangements under IRC § 401(k)(13).
27
Patient Protection and Affordable Care Act of 2010, Pub. L. 111-148, Section 1511 (PPACA § 1511) added Fair
Labor Standards Act of 1938 Section 18A (FLSA § 18A) that mandated automatic enrollment in group health plans
for employees of large employers. Forthcoming regulations will identify the process employers of more than 200