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The Wagner Law Group

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 25 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.





Contact Info

The Wagner Law Group


  Integrity | Excellence



Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Palm Beach Gardens 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418



Tel: (813) 603-2959

Fax: (813) 603-2961

101 East Kennedy Boulevard

Suite 2140
Tampa, FL  33602 


San Francisco

Tel: (415) 625-0002

Fax: (415) 358-8300

300 Montgomery Street

Suite 600

San Francisco, CA 94104


St. Louis

Tel: (314) 236-0065

Fax: (314) 236-5743
100 South 4th Street, Suite 550
St. Louis, MO  63102 







October 6, 2016


 Health and Welfare Law Alert




   Court Finds Employee Benefit Trust Fund's Trustee, Legal Counsel Liable for Retaliating Against ERISA Whistleblower




A U.S. District Court has determined, in Perez v. Scott Brain, that an employee benefit trust fund's trustee and legal counsel engaged in illegal activity when they retaliated against a fund employee who communicated with the Department of Labor ("DOL") during its investigation of the fund's administration.


Background. In 2011, the fund employee, who served as director for the fund's audit and collections department, responded to the DOL's investigation into the fund trustee's activities. In particular, the employee complained to DOL about the trustee's interference with her efforts to collect delinquent contributions from contractors who were required to contribute to the fund. After learning of the employee's contact with DOL, the trustee, on the advice of the fund's legal counsel, suspended the employee from her employment with the trust and, less than six months later, fired the employee.


Applicable Law. ERISA offers retaliation protections to help encourage people with knowledge of potential ERISA violations to share information in order to prevent or remedy those violations. Specifically, ERISA Section 510 prohibits employers from discharging, fining, suspending, expelling, disciplining, or discriminating against a person because he or she has given information in any ERISA-related inquiries or proceedings by DOL. Employers that violate ERISA Section 510 are subject to liability.


District Court Decision. In reviewing whether the defendants had violated ERISA by retaliating against the employee, the court concluded that the employee's suspension and termination were a direct result of her communication with the DOL. The court also found that the DOL had demonstrated that the defendants encouraged the fund's other trustees to support outsourcing the services that the employee performed and to eliminate her position.


As punishment for these actions, the court removed the defendant trustee from his position with the fund and ordered the defendant attorney to terminate her legal relationship (with the fund). The court also ordered the attorney to pay back to the fund the legal fees that she received for work related to the retaliatory conduct.


Takeaway for Employers. The Brain decision demonstrates the care that plan fiduciaries must use when investigating whistleblower allegations of wrongdoing regarding an employee benefit plan. Plan fiduciaries must be sure to avoid retaliating against employees or others for reporting or cooperating in the investigation of alleged misconduct involving an employee benefit plan. Moreover, plan fiduciaries are advised to prepare to defend against potential retaliation claims by prudently investigating and responding to allegations of misconduct in the administration of the plan.




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.