Independent Contractors Association welfare trust as a MEWA

U.S. Department of Labor, Pension and Welfare Benefits Administration
Advisory Opinion 1990-25A
August 2, 1990

[Recipient address omitted]

Dear Ms. Manor:

This is in reply to your request for an advisory opinion regarding the applicability of title I of the Employee Retirement Income Security Act of 1974 (ERISA). Specifically, you ask whether the Independent Contractors Association Welfare Benefit Trust (the Trust) is a multiple employer welfare arrangement (MEWA) within the meaning of section 3(40) of title I of ERISA.

You advise that the Trust was established pursuant to a trust agreement dated March 14, 1990, and effective January 1, 1989, between the Independent Contractors' Association (ICA), as trustor, and Mr. Stanley B. Carlson, as trustee. The trust agreement provides that the ICA wishes to provide certain benefits, including disability and accidental death benefits and life, sick, and accident benefits, to eligible Employees. The term "Employee” is defined in Article I, section 1.3 of the trust agreement to include any employee actively employed by an Employer "except Employees covered by collective bargaining agreements." The term “Employer” is defined in Article I, section 1.4 of the trust agreement to include the ICA, members of the ICA, and affiliates of the ICA.

You further advise that the ICA was incorporated on February 26, 1990. Article IV of the articles of incorporation provides that the purpose of the ICA is to be a business league within the meaning of the Internal Revenue Code section 501(c)(6) to advance the interests of independent contractors in the wood products industry of Oregon, Idaho, Washington and northern California. You also advise that, after the Trust was created, all assets and business of the Derby Association Trust, Inc. (TDATI) were transferred to the Trust. TDATI was the subject of Opinion 90-22A (issued June 15, 1990).

You stated in a telephone conversation with a representative of this Office that there is no indication that the Trust is maintained pursuant to one or more collectively bargained agreements and that there is no indication that the participating employers/stockholders of the Trust constitute a "control group" within the meaning of section 3(40)(B).

Section 3(40)(A) of title I of ERISA defines the term “MEWA to include:

… an employee welfare benefit plan, or any other arrangement (other than an employee welfare benefit plan), which is established or maintained for the purpose of offering or providing any benefit described in paragraph (1) to the employees of two or more employers (including one or more self-employed individuals), or to their beneficiaries, except that such term does not include any such plan or other arrangement which is established or maintained--

(i) under or pursuant to one or more agreements which the Secretary finds to be collective bargaining agreements, or (ii) by a rural electric cooperative.

Section 3(40)(B) provides in pertinent part:

For purposes of this paragraph –

(i) two or more trades or businesses, whether or not incorporated, shall be deemed a single employer if such trades or businesses are within the same control group, (ii) the term "control group” means a group of trades or businesses under common control, …

Based upon the information you submitted, it is the position of the Department of Labor (the Department) that the Trust is a MEWA within the meaning of section 3(40). The Trust covers the employees of more than two separate, independent employers; is not maintained by a rural electric cooperative; and is not maintained under or pursuant to any collective bargaining agreement.

Although section 514(a) of ERISA provides that any state law or regulation which relates to an employee benefit plan covered by ERISA is preempted, section 514(b) of title I of ERISA provides:

(6)(A) Notwithstanding any other provision of this section-- (i) in the case of an employee welfare benefit plan which is a multiple employer welfare arrangement and is fully insured (or which is a multiple employer welfare arrangement subject to an exemption under subparagraph (B)), any law of any State which regulates insurance may apply to such arrangement to the extent that such law provides-- (I) standards, requiring the maintenance of specified levels of reserves and specified levels of contributions, which any such plan, or any trust established under such a plan, must meet in order to be considered under such law able to pay benefits in full when due, and (II) provisions to enforce such standards, and (ii) in the case of any other employee welfare benefit plan which is a multiple employer welfare arrangement, in addition to this title, any law of any State which regulates insurance may apply to the extent not inconsistent with the preceding sections of this title. (B) The Secretary may, under regulations which may be prescribed by the Secretary, exempt from subparagraph (A)(ii), individually or by class, multiple employer welfare arrangements which are not fully insured. Any such exemption may be granted with respect to any arrangement or class of arrangements only if such arrangement or each arrangement which is a member of such class meets the requirements of section 3(1) and section 4 necessary to be considered an employee welfare benefit plan to which this title applies.

Although section 514(b)(6)(B) provides that the Secretary of Labor may prescribe regulations under which the Department may exempt MEWAs from state regulation under section 514(b)(6)(A)(ii), the Department has previously stated that it did not see the need to prescribe such regulations. The Department, at this time, has not changed its position. Accordingly, the Department is not exempting MEWAs from state regulation.

It is, therefore, the Department's position that the Trust is subject to state regulation at least to the extent provided in section 514(b)(6)(A), regardless of whether it is an employee benefit plan covered by title I of ERISA, because it is a MEWA within the meaning of section 3(40) of that title.

The preceding constitutes an advisory opinion under ERISA Procedure 76-1. Accordingly, it is issued subject to the provisions of that procedure, including section 10 thereof relating to the effect of advisory opinions.

Because your request for an opinion was concerned primarily with the issue of whether or not the Trust is subject to the applicable regulatory authority of the State of Oregon's insurance laws or is saved from such authority under the general preemption provision of section 514(a) of title I of ERISA, and because of the opinion above, we have determined it is not necessary at this time to render an opinion as to whether the Trust is an employee welfare benefit plan within the meaning of section 3(1) of that title.

Sincerely,

Robert J. Doyle Director of Regulations and Interpretations