Dentist’s benefit plan and interstate commerce

P/OPINION   77-36

                                                 4(a)(1)

                     April 22, 1977



Dear

This is in response to your letters of May 17 and
August 16, 1976. You ask in your letters whether a
dentist with an office in one state and a gross income of
less than $250,000 a year, who maintains an employee
benefit plan, is affecting interstate commerce and, thus,
covered under the Employee Retirement Income Security Act
of 1974 (ERISA). Please excuse the delay in responding.
The press of issuing necessary regulations and other
documents of general applicability has temporarily
preempted staff resources.

Section 4(a)(1) of ERISA provides that coverage of ERISA
shall apply to any employee benefit plan if it is
established or maintained "by any employer engaged in
commerce or in any industry or activity affecting
commerce." The various forms of equipment, drugs and
other materials used in your profession are sufficient to
find that you as an employer are "engaged in commerce" and
"affect commerce" within the coverage provisions of ERISA.

There have been numerous court cases which have held that
activities of the kind carried on in the dental profession
are sufficient to constitute engagement in commerce. Such
activities include employees engaged in "sending, pre-
paring, and receiving purchase orders, shipment orders,
invoices, bills and checks" to or from out-of-state
manufacturers and suppliers, Brennan v. State of Iowa, 494
F. 2d 100 (1974); office employees handling, preparing,
and mailing office papers for transmission across state
lines, Wirtz v. First State Abstract & Ins. Co., 363 F. 2d
83 (1966). Other activities, particularly the handling of
goods or equipment that have moved in commerce are
sufficient for interstate commerce coverage: handling and

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P/OPINION    77-36

use of x-ray equipment, Maryland v. Wirtz, 392 U.S. 183
(1968); regular use of soap, cleaning materials and linens
from interstate commerce, Schultz v. Union Trust Bank of
St. Petersburg, 297 F. Supp. 1274 (1969).

These and similar activities are sufficient to find you
within the section 4(a)(1) commerce coverage provision of
ERISA. Thus, your employee benefit plan is covered by
ERISA.

The reference in your letter of May 17 to the exclusion of
businesses earning less than $250,000 a year gross income
probably refers to a Fair Labor Standards Act coverage
provision, an Act unrelated to and not controlling upon
ERISA coverage provisions.

Sincerely,