Employees who are fired for complaining about abuse of their retirement benefits under ERISA have fewer rights than workers who complain about violations of other laws. See Atkins v. Greene County Hospital Board, No. 7:16-cv-00567-LSC, 2017 WL 6383183 (N.D. Ala. Dec. 14, 2017).  Marilyn Atkins was employed by Greene County Hospital, which allowed her to participate in a defined benefit pension retirement plan through the Retirement Systems of Alabama.  The hospital deducted retirement contributions from the paychecks of all full-time employees like Atkins, and put those funds into the Hospital’s general fund — from which general expenses were paid.

The Hospital was supposed to send the employee contributions to RSA “around” the tenth of each month, but almost never sent the payments within that time.  Moreover, some payments were delayed by as many as three months.  Atkins complained about the late payments to the Hospital’s CFO, and also made public complaints to the Hospital’s Board of Directors on October 20, 2015.  She was terminated from employment on October 29, 2015 for allegedly violating the Hospital’s “no call/no show” absence policy.

Ms. Atkins sued the Hospital claiming a breach of fiduciary duties under the Employee Retirement Income Security Act (“ERISA”) and for violating ERISA’s whistleblower protections.  On December 14, 2017, United States District Court Judge L. Scott Coogler dismissed Ms. Atkins’s claims.  Judge Coogler found that Ms. Atkins did not possess standing to sue for breach of fiduciary duty, and even if she did, she failed to prove her claims.

From an employment law perspective, Judge Coogler’s analysis of the ERISA whistleblower claims was more interesting.  He found that the anti-retaliation provisions of ERISA are not as extensive as those found in other federal statutes such as Title VII of the Civil Rights Act of 1964.  Those statutes protect employees who oppose, report or complain about unlawful practices.  In contrast, ERISA only protects persons who provide information in response to an “inquiry.”  Thus, Judge Coogler joined several other courts from around the country and found that employees are only protected by ERISA if they “participate, testify or give information in inquiries, investigations, proceedings or hearings.”  Ms. Atkins only complained internally at the Hospital, and she did not “participate, testify or given information in inquiries, investigations, proceedings or hearings.”  Therefore, Judge Coogler found that she did not possess an ERISA retaliation claim.

ERISA retaliation is a relatively rare claim.  Nevertheless, Judge Coogler has provided Alabama employers an additional weapon if they are sued for ERISA retaliation in the future.