Inflation and ERISA Penalties: Hand in Hand for 2022
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Key Takeaways
- The Federal Civil Penalties Inflation Adjustment Act of 2015 directs the US Department of Labor (DOL) to make annual inflation adjustments to specified Employee Retirement Income Security Act (ERISA) violations.
- The increased penalties generally apply to reporting and disclosure failures if the penalty is assessed after January 15, 2022, and if the violation occurred after November 2, 2015.
2022 INFLATION-ADJUSTED PENALTIES ANNOUNCED BY THE DEPARTMENT OF LABOR
The Federal Civil Penalties Inflation Adjustment Act of 2015 directs the US Department of Labor (DOL) to make annual inflation adjustments to specified Employee Retirement Income Security Act (ERISA) violations. The increased penalties generally apply to reporting and disclosure failures if the penalty is assessed after January 15, 2022, and if the violation occurred after November 2, 2015. The table below compares penalty amounts assessed for violations after January 15, 2021, through January 15, 2022 (the column labeled 2021 Penalty Amount), to penalty amounts assessed after January 15, 2022 (the column labeled 2022 Penalty Amount).
| DOL PENALTIES | |||
|---|---|---|---|
| ERISA Penalty Statute | Description of ERISA Violations Subject to Penalty | 2021 Penalty Amount | 2022 Penalty Amount |
| ERISA §209(b) | Failure to furnish reports (e.g., pension benefit statements) to certain former participants and beneficiaries or maintain records. | $31 per affected participant and beneficiary | $33 per affected participant and beneficiary |
| ERISA §502(c)(2) | Failure or refusal to properly file annual report (Form 5500) required by ERISA §104; and
Failure of a multiemployer plan to certify endangered or critical status under ERISA §305(b)(3)(C) treated as a failure to file annual report. |
Up to $2,259 per day | Up to $2,400 per day |
| ERISA §502(c)(4) | Failure to notify participants under ERISA §10(j) of certain benefit restrictions and/or limitations arising under Internal Revenue Code §436;
Failure to furnish certain multiemployer plan financial and actuarial reports upon request under ERISA §101(k); Failure to furnish estimate of withdrawal liability upon request under ERISA §101(l); and Failure to furnish automatic contribution arrangement notice under ERISA §514(e)(3). |
Up to $1,788 per day per affected participant | Up to $1,899 per day per affected participant |
| ERISA §502(c)(5) | Failure of a multiple employer welfare arrangement to file report required by regulations issued under ERISA §101(g). | Up to $1,644 per day | Up to $1,746 per day |
| ERISA §502(c)(6) | Failure to furnish information requested by the Secretary of Labor under ERISA §104(a)(6). | Up to $161 per day, not to exceed $1,613 per request | Up to $171 per day, not to exceed $1,713 per request |
| ERISA §502(c)(7) | Failure of a defined contribution plan to furnish a blackout notice under ERISA §101(i) or a notice of the right to divest employer securities under ERISA §101(m). | Up to $143 per day per affected participant | Up to $152 per day per affected participant |
| ERISA §502(c)(8) | Failure by a plan sponsor of a multiemployer plan in endangered status to adopt a funding improvement plan or a multiemployer plan in critical status to adopt a rehabilitation plan. Penalty also applies to a plan sponsor of an endangered status plan (other than a seriously endangered plan) that fails to meet its benchmark by the end of the funding improvement period. | Up to $1,419 per day | Up to $1,507 per day |
| ERISA §502(c)(9)(A) | Failure by an employer to inform employees of Children's Health Insurance Program (CHIP) coverage opportunities under ERISA §701(f)(3)(B)(i)(l). | Up to $120 per day per affected employee | Up to $127 per day per affected employee |
| ERISA §502(c)(9)(B) | Failure by a plan administrator to timely provide to any state the information required to be disclosed regarding coverage coordination under ERISA §701(f)(3)(B)(ii). | Up to $120 per day per affected participant and beneficiary | Up to $127 per day per affected participant and beneficiary |
| ERISA §502(c)(10)(B)(i) | Failure by any plan sponsor of a group health plan, or any health insurance issuer offering health insurance coverage in connection with the plan, to meet the requirements of ERISA §§702(a)(1)(F), (b)(3), (c) or (d); or §701; or §702(b)(1) with respect to genetic information. | $120 per day during non-compliance period | $127 per day during non-compliance period |
| ERISA §502(c)(10)(C)(i) | Minimum penalty for de minimis failures to meet genetic information requirements not corrected prior to notice from the Secretary of Labor. | $3,005 minimum | $3,192 minimum |
| ERISA §502(c)(10)(C)(ii) | Minimum penalty for failures to meet genetic information requirements which are not corrected prior to notice from the Secretary of Labor and are more than de minimis. | $18,035 minimum | $19,157 minimum |
| ERISA §502(c)(10)(D)(iii)(ll) | Cap on penalty for unintentional failures to meet genetic information requirements. | $601,152 maximum | $638,556 maximum |
| ERISA §502(c)(12) | Failure of Cooperative and Small Employer Charity Act (CSEC) plan sponsor to establish or update a funding restoration plan. | Up to $110 per day | Up to $117 per day |
| ERISA §502(m) | Defined benefit distribution prohibited by ERISA §206(e) due to an impermissible forfeiture following withdrawal of a participant's contributions. | Amount distributed but not more than $17,416 per distribution | Amount distributed but not more than $18,500 per distribution |
| ERISA §715 | Failure by a group health plan to provide Summary of Benefits Coverage under Public Health Services Act §2715(f), as incorporated into ERISA §715 and 29 CFR 2590.715-2715(e). | Up to $1,190 per failure | Up to $1,264 per failure |
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