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Appeal of A & J Beverage Distribution

January 27, 2012


The opinion of the court was delivered by: Hicks, J.

Department of Labor

Argued: September 15, 2011

The respondent, A & J Beverage Distribution, Inc. (A & J), appeals decisions of the New Hampshire Department of Labor (DOL) in this proceeding under the Whistleblowers' Protection Act, RSA ch. 275-E (2010 & Supp. 2011), brought by the petitioner, Kevin Perrier. We vacate.

The following facts were found by DOL or are supported in the record. The petitioner worked for A & J as a tractor trailer driver. A & J provided its employees with a health insurance plan, paying sixty percent of the cost. Participating employees were required to pay the remaining forty percent of their premiums. The plan operated on a calendar year, with open enrollment in December for the following year.

Although the petitioner declined to join the plan when he was hired in 2006, he chose to enroll for the year 2007. In January 2008, he learned that the premium had increased by fifty-two percent. He informed A & J that he wanted to opt out of coverage and did not authorize deduction of the increased premium from his pay. A & J insisted that the petitioner pay the premium for January and deducted the pro rata co-pay amount for that month from his wages. The petitioner brought a successful wage claim before DOL for a refund of the premium.

The petitioner remained uninsured through 2008 and was not given information about the 2009 plan during the open enrollment period in

December 2008. In January 2009, he learned from other employees that the premium had decreased. He sought information about the plan from A & J, including the summary plan description (SPD), but was refused. After consulting DOL and the United States Department of Labor, the petitioner wrote a letter to A & J's owner and vice president, stating:

I have contacted the U.S. Department of Labor, Employee

Benefits Security Administration, regarding questions about the company's group health plan. I understand that Employee Retirement Income Security Act (ERISA) section 104 requires plans to disclose certain information to plan participants and beneficiaries. Group health plans are covered by ERISA and participants do not have to be active in the plan to receive the information. The U.S. Department of Labor may impose a penalty against the Plan administrator for failing to provide the documents.

Please send me . . . a copy of the Summary Plan Description (SPD) for the company's group health plan. I understand that plan administrators are required to respond to written requests for information within 30 days. Failure to do so, at the court's discretion, could be a fine up to $110 a day from the date of such failure or refusal.

If I do not receive the requested information, I will be contacting the U.S. Department of Labor again for assistance. As mentioned, the U.S. Department of Labor can impose the above mentioned fine.

A & J then furnished the petitioner with information about the plan, but the information did not qualify as an SPD. On January 30, 2009, the plaintiff was terminated.

The petitioner filed a whistleblower's complaint with DOL on August 3, 2009, alleging that "[d]ue to [his] previous complaint," namely, his 2008 wage claim, he was "[t]erminated when [he] requested a copy of the Summary Plan Description for the group health plan." He sought reinstatement, back pay, fringe benefits and seniority rights, and "appropriate injunctive relief."

The DOL hearing officer ruled that the petitioner "sustained his burden of proof to show that he was discharged in retaliation for having exercised his legitimate rights under the law." In particular, the hearing officer found that "[i]n requesting information about the health insurance plan, [the petitioner] was acting in accordance with his rights under [ERISA]." The hearing officer awarded back pay, but determined "that the employment relationship is tinged with animosity such that ordering reinstatement would not be in the best interests of either party." Accordingly, instead of reinstatement, the hearing officer ordered front pay "continuing until the [petitioner] finds employment." Thereafter, the hearing officer awarded attorney's fees, costs and statutory interest. A & J unsuccessfully moved for reconsideration, arguing, inter alia, that the petitioner's whistleblower claim was preempted by ERISA.

On appeal, A & J again asserts preemption. The petitioner counters that the issue of ERISA preemption was not properly raised below and therefore has not been preserved for appeal. He contends that the question raised at argument before DOL was whether that tribunal had "jurisdiction to rule on ERISA issues." He then argues that "jurisdiction to hear a case is different than whether or not the body hearing the case is preempted from applying a particular law (in this case, state law) to determine the case."

Ordinarily, we would decide the preservation issue before addressing the merits of the issue allegedly not preserved, since issues not preserved are normally waived. See, e.g., Dupont v. N.H. Real Estate Comm'n, 157 N.H. 658, 662 (2008). In this case, however, an examination of ERISA preemption principles is essential to our ruling on preservation. ...

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