Remember San Francisco's emergency petition to the U.S. Court of Appeals for the Ninth Circuit? The one asking the appellate court to set aside the trial court's order that ERISA preempted the city's ordinance requiring employers to spend a percentage of their revenue on health care? The Ninth Circuit panel agrees with San Francisco. It reversed the trial court's ruling today. You can read about it in the San Francisco Chronicle here. The take of Workplace Prof blog is here. The decision is here. The war over this ordinance is not over. But the City has won this battle. I'm sticking with my prediction that, in the end, ERISA will end up preempting the ordinance.
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I agree Don. I think the decision cuts too fine in its analysis on that point.
by Brian S. King November 17, 2008 at 01:47 PM
Brian: Thanks for posting this case. On pages 14 and 26, the decision stated that only payments are required of employers, not benefits. Couldn't the other side argue that the plan is still an ERISA plan, albeit a defined contribution plan (that buys a certain amount of undetermined benefits), rather than a defined benefits plan (that requires a certain amount of contributions). And, whether or not the employer sets up an ERISA plan, or sets up a plan (an ongoing scheme), a plan is still required? Don Levit
by Don Levit November 17, 2008 at 01:47 PM
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