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The Devil You Know: Why Employers Are Better Off if ERISA Protects Internal Complaints

Employee Benefit Plan Review

This past term, the U.S. Supreme Court declined the invitation to review the decision by the U.S. Court of Appeals for the Third Circuit in Edwards v. A.H. Cornell and Son, Inc., which held that the Employee Retirement Income Security Act's (ERISA) anti-retaliation provision does not protect employees who are fired after complaining to company management of suspected ERISA violations. The Supreme Court's denial of certiorari left intact a sharp circuit split, with the Fifth and Ninth Circuits, which have both held that ERISA protects internal complaints, arrayed against the Second, Fourth, and now Third Circuits. While the Supreme Court's decision to let Edwards stand may be seen as a boon for employers, according to authors Brian Hill and Jeff Hahn, the reality is far murkier: Not only is there a strong argument that the Third Circuit got it wrong, but employers may in fact be worse off if the Third Circuit got it right.