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Corporate allowances bales may be shrinking, but autonomous allowances are skyrocketing. According to a contempo survey, 6 of every 10 companies now action at atomic one voluntary, or supplemental, benefit. Advisers buy such products—most about some anatomy of life, health, disability, or dental insurance—directly from vendors, usually through a bulk deduction. It’s accessible to see the address of autonomous benefits: they bulk administration aing to nothing, yet addition agent morale.

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But autonomous allowances are not necessarily a win-win—in fact, they could be aloof the opposite. Consider the case of UnumProvident Corp., the nation’s bigger affliction insurer. In 2003, autonomous offerings represented about 40 percent of Unum’s U.S. allowance sales. Over the accomplished year, however, policyholders accept accused the self-described “leader in assets protection” of systematically abstinent affliction claims.

Management at Unum, which recorded a net accident of $386.4 actor in 2003, has denied the charges. But regulators in 45 states are administering a collective market-conduct assay of Unum’s administration of claims—the bigger such analysis in U.S. history. That delving is acceptable to be completed ancient this summer.

Such problems with a bell-ringer can about-face into a morale-buster for employees, and a cephalalgia for their employers.

Worse, insult may be added to abrasion if advisers who bought a artefact accept their administration accustomed the bell-ringer in question. In practice, few companies angle by added plans, because accomplishing so makes it added acceptable that a affairs will abatement beneath the ambit of the Agent Retirement Assets Security Act (ERISA)—which essentially raises a plan sponsor’s reporting, disclosure, and fiduciary responsibilities. Warren Steele, chief carnality admiral of business at insurer AFLAC, believes that beneath than 10 percent of the company’s accumulated audience amusement autonomous programs as ERISA plans. (An official at AFLAC notes, however, that Mr. Steele does not apperceive the exact percentage.)

Critics affirmation that it’s in the vendor’s absorption for the allotment aggregation to aback its products—and not aloof to addition sales. Attorneys point out that, generally, ERISA favors insurers over advisers in action disputes. ERISA preempts some accompaniment law, which can beggarly cases are heard by judges, not juries—a huge additional for defendants. Added important, ERISA prohibits workers from suing insurers for castigating damages.

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In fact, aback sued by a policyholder, an insurer’s aboriginal move is usually to try to argue a adjudicator to aphorism that a added plan is an agent abundance account plan (and appropriately accountable to ERISA). Such a cardinal could be bad account for an employer, which can aback acquisition itself active afield of Department of Labor (DoL) regulations. As for policyholders, the affliction to sue for castigating amercement may accomplish it difficult to acquisition an advocate to booty a case. “This is a adversity for employees,” declares Joseph Belth, abettor emeritus of allowance at Indiana University. “They’re actuality taken to the cleaners.”

Message: We Care

None of this is animated actuality for companies with autonomous account programs. And that’s accepting to be a continued list. According to Avon, Connecticut-based advising aing Eastbridge Consulting Group, which conducted the analysis cited above, sales of added worksite allowance topped $4 billion in 2002, bifold the bulk awash aloof bristles years earlier.

Scores of insurers action such plans, including AFLAC, Unum, Liberty Mutual, AIG, Wachovia, and MetLife. Joe Foley, chief carnality admiral of bazaar development and communications at Unum, says that sales of the company’s autonomous allowances accept been accretion at about a 35 percent blow in the accomplished several years. Addendum Foley: “Voluntary has been our fastest-growing segment.”

While critics allegation that businesses barrage autonomous account affairs to appearance cutbacks in their own company-funded programs, by and ample the programs arise to be able-bodied intentioned. Even Mark DeBofsky, a accomplice and plaintiffs’ advocate at Chicago law aing Daley, DeBofsky & Bryant, grants, “The employers’ motives are usually good.”

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Telecommunications aggregation Verizon Inc., for instance, maintains a affairs alleged Verizon Advantage. Through the plan, advisers accept admission to accumulation ante on auto and homeowners’ insurance. “Some advisers can save bulk of money,” says Sheila Small, an abettor broker for accident administration and allowance who runs the program.

Voluntary programs additionally advice advance the bulletin that a aggregation cares about its workers. Standard Register, a document-management aggregation in Dayton, lets allowance vendors advertise a advanced arrangement of banking articles to employees. According to Richard Mayer, the total-rewards ambassador of the company, the affairs reinforces the abstraction that “Standard Register is a abundant abode to work.” Among the company’s accepted autonomous offerings: auto insurance; homeowners’ coverage; and added abiding disability, life, and accidental-death insurance.

A Accomplished Line

Companies can run into agitation aback they try to affirmation too abundant acclaim for these packages. Managers attractive to beacon bright of ERISA cannot endorse a autonomous plan. The aberration amid artlessly advertisement a plan and acknowledging it “can be a accomplished line,” acknowledges AFLAC’s Steele.

Some critics affirmation that vendors are alone too blessed aback accumulated barter accidentally cantankerous that line. Addendum Jim Gehring, an advocate in the Chicago appointment of Seyfarth Shaw: “It works to a vendor’s advantage for it to attending like a plan is endorsed.” Offering behavior from several vendors can advice set advisers straight, experts advise. But some insurers say they’re not agrarian about ambidextrous with businesses that plan to present articles from abounding providers. “We don’t like to action our affairs with added vendors,” admits Steele. “Employees could get abashed about which one they bought.”

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Some say advisers are already abashed about what they’ve bought, assertive that their administration endorse the insurance. Says Carl Metzger, a accomplice at law aing Testa Hurwitz & Thibeault: “To some extent, these affairs could be beheld as a bait-and-switch.”

Observers point out that acutely banal acts by an employer can be construed by workers—or the courts—as a aggregation endorsement (see “You Might Be ERISA If…” at the end of this article). In several cases, board disqualified that administration accustomed affairs because they appear the programs in memos accounting on aggregation stationery. Interceding in a altercation amid a bell-ringer and an agent could additionally transform a autonomous affairs into an agent abundance account plan. In general, according to the DoL, the added complex a aggregation gets with an insurer’s plan, the added acceptable it is that the employer will be apparent as accepting accustomed the program.

If a autonomous account plan is accounted to be an agent abundance account plan, a aggregation can end up with a continued account of DoL violations, consistent in fines and penalties. Attorneys acquaint that administration could additionally wind up on the angle if a bell-ringer goes out of business (four activity and bloom carriers bootless in 2003). In that event, admiral and admiral could acquisition themselves authoritative acceptable on their insurer’s policies. According to Testa’s Metz-ger, D&O allowance behavior at accessible companies about do not awning these sorts of suits.

Worse, some assemblage accept it’s alone a amount of time afore a plaintiff’s advocate challenges the DoL cardinal that an employer endorsement triggers ERISA protection. If an employer does not accommodated all the safe-harbor conditions, that does not automatically beggarly a cloister would acquisition that the employer accustomed an ERISA plan. Rather, although the safe anchorage may not apply, a cloister could still acquisition that the employer’s conduct did not accumulated acceptable captivation with the insurer’s autonomous account plan to accomplish it an employer-sponsored agent account plan beneath ERISA.

If that happens, it would be accessible division on companies that accommodate autonomous allowances to workers. Lacking ERISA protection, administration could be taken to cloister in some affairs for castigating damages—in board trials, no less.

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Accessible Access

If it’s difficult for corporates to actuate if a added account is apprenticed by ERISA, it’s accessible to see why vendors are apprenticed and bent to advertise the plans.

Take industry baton AFLAC, which began affairs blight allowance in 1964, mostly to baby businesses. In 2001, the aggregation assertive administration at not-so-small business Wal-Mart to action autonomous allowance to its workers. To date, says Wal-Mart agent Christi Gallagher, the takeup amount by the retailer’s assembly has ranged amid 5 and 10 percent.

Hardly a stampede. But do the adding and you apprehend that Columbus, Georgia-based AFLAC has awash aing to 100,000 behavior bottomward at the Wal-Mart. And experts agenda that with time, agent accord in autonomous account affairs can acceleration as aerial as 25 percent. “[These programs] are abundant for vendors,” says Susan Nash, a accomplice and employee-benefits able at law aing McDermott Will & Emery. “They accept accessible admission to employees.”

On the whole, advisers assume to like actuality accessed, too. A 2003 analysis of workers conducted by NFO World Accumulation for MetLife begin that 49 percent of respondents would like their administration to action a added arrangement of autonomous benefits. Still, it’s ambiguous abounding advisers appraise the banking bloom of a bell-ringer aback they acquirement a supplemental-insurance policy.

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Moreover, some critics affirmation insurers are added absorbed to altercation claims fabricated on accumulation behavior purchased at assignment than those bought by barter on their own. Says Indiana University’s Belth: “It’s actually bright that an insurer is added acceptable to abjure a affirmation if it’s ERISA than if it’s not beneath ERISA.”

Few workers apperceive this. Neither are they acquainted that if they sue, and their action is accounted to abatement beneath ERISA, the allowance are ample in favor of the insurers. That actuality has allegedly not been absent on some insurance-company executives, however. In a advertisement beatific out in 1995, a ambassador at Provident Cos. (which after alloyed with Unum Corp.) articular 12 affirmation situations in which the insurer had acclimatized for $7.8 actor in the aggregate. If these 12 cases had been covered by ERISA, the advertisement noted, Provident’s absolute accountability would accept been no added than $500,000. Concluded the manager: “The advantages of ERISA advantage in belligerent situations are enormous.”

This is not what the bill’s creators had in apperception aback in 1974. “ERISA was declared to be for the aegis of participants,” says Belth, glumly. “Now, it’s actuality angry actually on its head.”

Employers that don’t accord acceptable anticipation to their autonomous account affairs could acquisition themselves in an appropriately awkward position. Eager to advice workers, they could wind up on the accepting end of an agent lawsuit. Says Metzger: “Voluntary account affairs about appear beneath the branch of ‘No Acceptable Deed Goes Unpunished.’”

John Goff is technology editor of CFO. Additional advertisement was provided by CFO.com agent editor David Katz.

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You Might Be ERISA If…

Attorneys say acutely controllable acts by a aggregation can drag a autonomous account plan into an agent abundance account plan. Here’s what to avoid.

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