With an alarming number of American workers lacking adequate retirement savings, California and a handful of other states began implementing state-sponsored retirement savings programs.  The CalSavers Retirement Savings Program (CalSavers) was first launched as a pilot program in 2018 and then expanded to all eligible employers in the state in July 2019 in order to provide employees access to a retirement savings program without the administrative complexity for employers. CalSavers requires employers who do not offer employer-sponsored retirement plans to its employees, such as a 401(k) plan, to automatically enroll their employees into the CalSavers plan and to remit payroll deductions to the CalSavers trust for each employee who does not affirmatively opt out of participation in the plan.

In 2018, Howard Jarvis Taxpayers Association (HJTA), a non-profit lobbying and policy group, challenged the legality of CalSavers and claimed that the program was expressly preempted by the Employee Retirement Income Security Act of 1974 (ERISA). HJTA argued that, without preemption, such state-run employee funds will have none of the protections of ERISA.

On March 10, 2020, a federal judge ruled that CalSavers does not create an “employee benefit plan” under Section 3(3) of ERISA and is, therefore, not preempted. The reasoning behind this determination was that CalSavers is not established or maintained by an “employer” and does not “relate to” any ERISA plan.

“Actual employers have no discretion in the administration of CalSavers and do not make any promises to employees; employers simply remit payroll deducted payments to the Program and otherwise have no discretion regarding the funds,” Judge Morrison C. England stated.  Furthermore, the court refused to find that the California Secure Choice Retirement Savings Investment Board, the state agency board that administers CalSavers, and the California Secure Choice Retirement Savings Trust, the trust that held the contributions, are “employers” because neither the Board nor the Trust acts directly or indirectly in the interest of an employer.

Lastly, the federal district court held that CalSavers does not “relate to” an ERISA plan because it does not interfere with nor apply additional requirements on any employer-sponsored or ERISA plans.  It also does not mandate that an employer establish an employee benefit plan. Rather, CalSavers applies only when an employer does not sponsor its own retirement plan.

Judge Morrison previously dismissed the lawsuit in 2019 without prejudice, which allowed HJTA to refile. Last fall, the federal Department of Justice filed a “Statement of Interest” that supported HJTA’s stance that CalSavers was preempted by ERISA. Despite this support from the Department of Justice, the federal court disagreed.

It is not clear at this time if HJTA will appeal this decision.

Jackson Lewis will continue to monitor this matter. If you have questions about CalSavers or other ERISA issues, contact a Jackson Lewis attorney to discuss.

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Photo of Donald P. Sullivan Donald P. Sullivan

Donald P. Sullivan is a principal in the San Francisco, California, office of Jackson Lewis P.C. Donald has more than 20 years of experience defending and counseling employers, as well as fiduciaries, sponsors, and insurers of employee benefit plans, in state and federal…

Donald P. Sullivan is a principal in the San Francisco, California, office of Jackson Lewis P.C. Donald has more than 20 years of experience defending and counseling employers, as well as fiduciaries, sponsors, and insurers of employee benefit plans, in state and federal courts and before state and federal agencies, including the United States Department of Labor, the Equal Employment Opportunity Commission, and California’s Departments of Industrial Relations and Fair Employment and Housing.

In his employee benefits practice, Donald regularly advises and represents both pension and welfare benefit plans and their fiduciaries in class action and single-participant litigation. With respect to pension plans, Donald defends plans and fiduciaries against lawsuits alleging imprudent investments in employer securities, imprudent selection of investment options, excessive administrative fees, and entitlement to benefits. With respect to welfare plans, Donald defends plans, fiduciaries, and insurers of insured benefit plans in both ERISA and non-ERISA actions seeking the payment of short and long-term disability, life and medical benefits. Donald also frequently represents employee benefit plans and their fiduciaries in investigations conducted by the U.S. Department of Labor.

In his employment practice, Donald defends clients in cases alleging violations of the California Labor Code related to the payment of wages, as well as in lawsuits alleging discrimination on the basis of race, gender, age and disability in violation of California’s Fair Employment and Housing Act and federal statutes, including Title VII, the ADA, and the ADEA. He has extensive experience defending both single-plaintiff and class action ERISA and California wage and hour lawsuits. Integral to Donald’s practice are the privacy protections afforded to individuals under the Health Insurance Portability and Accountability Act (HIPAA).

Donald’s interest and commitment to the employment and employee benefits practice has very deep roots. In college, he worked for the Office of Labor Relations and Collective Bargaining for Washington, D.C. He worked for the U.S. Equal Employment Opportunity Commission while in law school. After law school, he began representing employers and management in employment and labor disputes, while developing a sub-specialty in employee benefits, ERISA, and healthcare. Donald was a law clerk for the Honorable Everett A. Martin, Fourth Judicial Circuit of Virginia, 1996-1997. Before joining Jackson Lewis, Donald practiced in the Chambers USA awarding-wining labor and employment group of a national Philadelphia-based law firm.