DOL to Adjust Civil Monetary Penalties for Inflation

On June 30, 2016, the U.S. Department of Labor published an interim final rule to adjust for inflation the civil monetary penalties it is charged with enforcing. Current law requires Federal agencies, including the Department of Labor (the "DOL"), to adjust their civil monetary penalties for inflation. The DOL's recently published interim final rule sets forth catch-up adjustments for inflation through October 2015, for the penalties enforced by the various agencies in the DOL, including the Employee Benefit Security Administration ("EBSA") - the DOL's enforcement arm for violations of the fiduciary, reporting and disclosure provisions of Title I of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The rule's catch-up adjustments, as detailed in the chart below, apply to penalties assessed after August 1, 2016, whose related violations occurred after November 2, 2015. Violations of Title I of ERISA committed on or before November 2, 2015, and assessments made on or before August 1, 2016, for violations occurring after November 2, 2015, will continue to be subject to the civil monetary penalty amounts provided for in the DOL's existing regulations in 29 CFR Part 2575 (or as otherwise established by statute if the penalty amount was never adjusted by regulation).

No later than January 15 of each year, beginning in 2017, the DOL will adjust the new ERISA Title I penalty amounts annually for inflation (e.g., by January 15, 2017, the DOL will adjust penalty amounts to reflect any increase in inflation from October 2015 to October, 2016). The EBSA has stated that it will post any changes to ERISA Title I penalty amounts on its website. Annual inflation adjustments, however, are not subject to notice and rulemaking.

The full text of the DOL's interim final rule may be viewed here

New Penalty Amounts Adjusted For Inflation

The table below shows the current penalty amounts enforceable by EBSA and the inflation adjusted penalty that will be effective for penalties assessed after August 1, 2016.

ERISA Penalty Statute Description of ERISA Violations Subject to Penalty Current Penalty Amount New Penalty Amount
ERISA § 209(b) Failure to furnish reports (e.g., pension benefit statements) to certain former participants and beneficiaries or maintain records. Up to $11 per employee Up to $28 per employee
ERISA § 502(c)(2)
  • Failure or refusal to 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 failure to file annual report.
Up to $1,100 per day Up to $2,063 per day
ERISA § 502(c)(4)
  • Failure to notify participants under ERISA § 101(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 $1,000 per day Up to $1,632 per day
ERISA § 502(c)(5) Failure of a multiple employer welfare arrangement to file report required by regulations issued under ERISA § 101(g). Up to $1,100 per day Up to $1,502 per day
ERISA § 502(c)(6) Failure to furnish information requested by Secretary of Labor under ERISA §104(a)(6). Up to $110 per day not to exceed $1,100 per request Up to $147 per day not to exceed $1,472 per request
ERISA § 502(c)(7) Failure to furnish a blackout notice under section 101(i) of ERISA or notice of the right to divest employer securities under section 101(m) of ERISA. Up to $100 per day Up to $131 per day
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 $1,100 per day Up to $1,296 per day
ERISA § 502(c)(9)(A) Failure by an employer to inform employees of CHIP coverage opportunities under ERISA § 701(f)(3)(B)(i)(I) - each employee a separate violation. Up to $100 per day Up to $110 per day
ERISA § 502(c)(9)(B) Failure by a plan administrator to timely provide to any State the information required to be disclosed under ERISA § 701(f)(3)(B)(ii), regarding coverage coordination - each participant/beneficiary a separate violation. Up to $100 per day Up to $110 per day
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. $100 per day during non- compliance period $110 per day during non­compliance period
ERISA § 502(c)(10) (C)(i) Minimum penalty for de minimis failures to meet genetic information requirements not corrected prior to notice from Secretary of Labor. $2,500 minimum $2,745 minimum
ERISA § 502(c)(10)(C) (ii) Minimum penalty for failures to meet genetic information requirements which are not corrected prior to notice from Secretary of Labor and are not de minimis. $15,000 minimum $16,473 minimum
ERISA § 502(c)(10)(D) (iii)(II). Cap on unintentional failures to meet genetic information requirements. $500,000 maximum $549,095 maximum
ERISA § 502(c)(12) Failure of CSEC plan sponsor to establish or update a funding restoration plan. Up to $100 per day Up to $100 per day
ERISA § 502(m) Distribution prohibited by ERISA § 206(e) of ERISA. Up to $10,000 per distribution Up to $15,909 per distribution
ERISA § 715 Failure to provide Summary of Benefits Coverage under Public Health Services Act section 2715(f), as incorporated into ERISA section § 715 and 29 CFR 2590.715-2715(e). Up to $1,000 per failure Up to $1,087 per failure