Employers that don't give sufficient thought to their voluntary benefit plans could find themselves in an equally awkward position. Eager to help workers, they could wind up on the receiving end of an employee lawsuit. Says Metzger: "Voluntary benefit plans often come under the heading of 'No Good Deed Goes Unpunished.'"

John Goff is technology editor of CFO. Additional reporting was provided by CFO.com deputy editor David Katz.

You Might Be ERISA If...

Attorneys say seemingly harmless acts by a company can elevate a voluntary benefit plan into an employee welfare benefit plan. Here's what to avoid.

1. Only one vendor. Insurers may want only their products on offer, but the more vendors there are, the less likely workers will think their employer vetted the seller.
2. Plan announcement on letterhead. Says one attorney: "Some courts have deemed that the mere description of a plan on company letterhead makes it ERISA."
3. Enthusiastic annoucement. An employer's over-the-top message to workers about a plan may be seen as an endorsement.
4. No disclaimer. Attorneys disagree on this one, but it can't hurt to put out a disclaimer on all messages to employees about a supplemental plan.
5. Plan mentioned in other literature. Including information about a voluntary plan in a brochure that also describes a company's ERISA plans could lead to trouble.
6. Negotiating for a better deal. Trying to get vendors to include more workers in the program, for example, gets an employer more involved in the plan—and closer to ERISA.
7. Advertising in a dispute. Employers should avoid interceding in a dispute between a vendor and an employee: Explains one lawyer: "That's something a plan administrator would do."
8. Scheduling the same election period. The open-enrollment period for a voluntary plan should never coincide with the enrollment period for a company's ERISA programs. —J.G.

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