II 

116TH CONGRESS 

1ST SESSION S. 1927 

To amend the Employee Retirement Income Security Act of 1974 with respect 

to association retirement plans and other multiple employer pension 

benefit plans. 

IN THE SENATE OF THE UNITED STATES 

JUNE 20, 2019 

Mr. KENNEDY introduced the following bill; which was read twice and referred 

to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 with respect to association retirement plans and 

other multiple employer pension benefit plans. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Expanding Access to 

5 Retirement Act of 2019’’. 


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1 SEC. 2. DEFINITION OF ‘‘EMPLOYER’’ FOR PURPOSES OF AS2 SOCIATION RETIREMENT PLANS AND OTHER 

3 MULTIPLE EMPLOYER PENSION BENEFIT 

4 PLANS. 

5 (a) DEFINITION OF EMPLOYER.—Section 3(5) of the 

6 Employee Retirement Income Security Act of 1974 (29 

7 U.S.C. 1002(5)) is amended by striking the period and 

8 inserting ‘‘(which, with respect to a defined contribution 

9 pension plan, includes only a bona fide group or associa10 tion of employers or a bona fide professional employer or11 ganization, as defined in paragraphs (43) and (44), re12 spectively).’’. 

13 (b) BONA FIDE GROUP OR ASSOCIATION OF EM14 PLOYERS.—Section 3 of the Employee Retirement Income 

15 Security Act of 1974 (29 U.S.C. 1002) is amended by 

16 adding at the end the following: 

17 ‘‘(43)(A) The term ‘bona fide group or associa18 tion of employers’ means a group or association of 

19 employers that meets all of the following require20 ments: 

21 ‘‘(i) The primary purpose of the group or 

22 association may be to offer and provide multiple 

23 employer pension plan coverage to employer 

24 members and their employees, provided that the 

25 group or association has at least one substantial 

26 business purpose unrelated to offering and proVerDate Sep 11 2014 00:37 Jun 22, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1927.IS S1927

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1 viding multiple employer pension plan coverage 

2 or other employee benefits. 

3 ‘‘(ii) Each employer member of the group 

4 or association participating in the plan is a per5 son acting directly as an employer of at least 

6 one employee who is a participant covered 

7 under the plan. 

8 ‘‘(iii) The group or association has a for9 mal organizational structure with a governing 

10 body and has by-laws or other similar indica11 tions of formality. 

12 ‘‘(iv) The functions and activities of the 

13 group or association are controlled, in form and 

14 in substance, by its employer members and the 

15 group’s or association’s employer members that 

16 participate in the pension plan. 

17 ‘‘(v) The employer members have a com18 monality of interest as described in subpara19 graph (C). 

20 ‘‘(vi) The group or association does not 

21 make plan participation through the association 

22 available other than to employees and former 

23 employees of employer members, and their 

24 beneficiaries. 


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1 ‘‘(vii) The group or association is not a 

2 bank or trust company, insurance issuer, 

3 broker-dealer, or other similar financial services 

4 firm (including pension record keepers and 

5 third-party administrators), or owned or con6 trolled by such an entity or any subsidiary or 

7 affiliate of such an entity, other than to the ex8 tent such an entity, subsidiary, or affiliate par9 ticipates in the group or association in its ca10 pacity as an employer member of the group or 

11 association. 

12 ‘‘(B) For purposes of subparagraph 

13 (A)(i)— 

14 ‘‘(i) a ‘substantial business purpose’ is 

15 considered to exist if the group or associa16 tion would be a viable entity in the absence 

17 of sponsoring an employee benefit plan; 

18 and 

19 ‘‘(ii) a ‘business purpose’ includes pro20 moting common business interests of the 

21 group’s or association’s members or the 

22 common economic interests in a given 

23 trade or employer community and is not 

24 required to be a for-profit activity. 


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1 ‘‘(C)(i) For purposes of subparagraph 

2 (A)(5)— 

3 ‘‘(I) Employer members of a group or 

4 association shall be considered to have a 

5 commonality of interest if— 

6 ‘‘(aa) the employers are in the 

7 same trade, industry, line of business, 

8 or profession; or 

9 ‘‘(bb) each employer has a prin10 cipal place of business in the same re11 gion that does not exceed the bound12 aries of a single State or a metropoli13 tan area (even if the metropolitan 

14 area includes more than one State). 

15 ‘‘(ii) In the case of a group or associa16 tion that is sponsoring a multiple employer 

17 plan and that is an employer member of 

18 the group or association, the group or as19 sociation will be deemed for purposes of 

20 paragraph (b)(2)(i)(A) to be in the same 

21 trade, industry, line of business, or profes22 sion, as applicable, as the other employer 

23 members of the group or association. 

24 ‘‘(D)(i) For purposes of subparagraph (A), 

25 a working owner of a trade or business without 


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1 common law employees may qualify as both an 

2 employer and as an employee of the trade or 

3 business. 

4 ‘‘(ii) For purposes of clause (i), the term 

5 ‘working owner’ means any person who a re6 sponsible plan fiduciary reasonably determines 

7 is an individual— 

8 ‘‘(I) who has an ownership right of 

9 any nature in a trade or business, whether 

10 incorporated or unincorporated, including 

11 a partner or other self-employed individual; 

12 ‘‘(II) who is earning wages or self-em13 ployment income from the trade or busi14 ness for providing personal services to the 

15 trade or business; and 

16 ‘‘(III) who— 

17 ‘‘(aa) works on average at least 

18 20 hours per week or at least 80 

19 hours per month providing personal 

20 services to the working owner’s trade 

21 or business; or 

22 ‘‘(bb) has wages or self-employ23 ment income from such trade or busi24 ness that at least equals the working 

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1 tion by the working owner and any 

2 covered beneficiaries in any group 

3 health plan sponsored by the group or 

4 association in which the individual is 

5 participating or is eligible to partici6 pate. 

7 ‘‘(iii) The determination of whether 

8 an individual qualifies as a working owner 

9 shall be made when the individual first be10 comes eligible for participation in the de11 fined contribution multiple employer pen12 sion plan and continued eligibility pursuant 

13 to this subparagraph shall be periodically 

14 confirmed pursuant to reasonable moni15 toring procedures.’’. 

16 (c) BONA FIDE PROFESSIONAL EMPLOYER ORGANI17 ZATION.—Section 3 of the Employee Retirement Income 

18 Security Act of 1974 (29 U.S.C. 1002), as amended by 

19 subsection (b), is further amended by adding at the end 

20 the following: 

21 ‘‘(44)(A) The term ‘bona fide professional em22 ployer organization’ means a human resource com23 pany that contractually assumes certain employer re24 sponsibilities of employers who are clients of the or25 ganization (referred to in this paragraph as ‘client 


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1 employers’) and that meets all of the following re2 quirements: 

3 ‘‘(i) The organization performs substantial 

4 employment functions, as described in subpara5 graph (B), on behalf of client employers, and 

6 maintains adequate records relating to such 

7 functions. 

8 ‘‘(ii) The organization has substantial con9 trol over the functions and activities of the mul10 tiple employer plan, as the plan sponsor (within 

11 the meaning of section 3(16)(B)), the plan ad12 ministrator (within the meaning of section 

13 3(16)(A)), and a named fiduciary (within the 

14 meaning of section 402). 

15 ‘‘(iii) The organization ensures that each 

16 client employer that adopts the multiple em17 ployer pension plan acts directly as an employer 

18 of at least one employee who is a participant 

19 covered under the defined contribution multiple 

20 employer plan. 

21 ‘‘(iv) The organization ensures that partici22 pation in the multiple employer pension plan is 

23 available only to employees and former employ24 ees of the organization and client employers, 

25 and their beneficiaries. 


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1 ‘‘(v) The organization establishes a mul2 tiple employer pension plan. 

3 ‘‘(B)(i) The Secretary shall determine 

4 whether an organization is considered to per5 form substantial employment functions on be6 half of client employers, within the meaning of 

7 subparagraph (A)(i), based on the criteria 

8 under clause (ii). 

9 ‘‘(ii) An organization performs substantial 

10 employment functions if either of the following 

11 applies: 

12 ‘‘(I) The organization is a certified 

13 professional employer organization (as de14 fined in section 7705(a) of the Internal 

15 Revenue Code of 1986), has entered into a 

16 service contract (within the meaning of 

17 section 7705(e)(2) of such Code) with re18 spect to its clients that adopt the defined 

19 contribution multiple employer pension 

20 plan. 

21 ‘‘(II) The organization meets 5 or 

22 more of the following criteria with respect 

23 to employees of client employers partici24 pating in the multiple employer pension 

25 plan: 


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1 ‘‘(aa) The organization is respon2 sible for payment of wages to employ3 ees of its client employers that adopt 

4 the plan without regard to the receipt 

5 or adequacy of payment from such cli6 ent employers. 

7 ‘‘(bb) The organization is respon8 sible for reporting, withholding, and 

9 paying any applicable Federal employ10 ment taxes for its client employers 

11 that adopt the plan, without regard to 

12 the receipt or adequacy of payment 

13 from those client employers. 

14 ‘‘(cc) The organization is respon15 sible for recruiting, hiring, and firing 

16 workers of its client employers that 

17 adopt the plan in addition to the cli18 ent employer’s responsibility for re19 cruiting, hiring, and firing workers. 

20 ‘‘(dd) The organization is respon21 sible for establishing employment poli22 cies, establishing conditions of em23 ployment, and supervising employees 

24 of its client employers that adopt the 

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1 er’s responsibility to perform such 

2 functions. 

3 ‘‘(ee) The organization is respon4 sible for determining employee com5 pensation, including method and 

6 amount, of employees of its client em7 ployers that adopt the plan in addi8 tion to the client employers’ responsi9 bility to determine employee com10 pensation. 

11 ‘‘(ff) The organization is respon12 sible for providing workers’ compensa13 tion coverage in satisfaction of appli14 cable State law to employees of its cli15 ent employers that adopt the plan, 

16 without regard to the receipt or ade17 quacy of payment from those client 

18 employers. 

19 ‘‘(gg) The organization is respon20 sible for integral human-resource 

21 functions of its client employers that 

22 adopt the plan, such as job-description 

23 development, background screening, 

24 drug testing, employee-handbook 

25 preparation, performance review, paid 


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1 time-off tracking, employee griev2 ances, or exit interviews, in addition 

3 to the client employer’s responsibility 

4 to perform such functions. 

5 ‘‘(hh) The organization is respon6 sible for regulatory compliance of its 

7 client employers participating in the 

8 plan in the areas of workplace dis9 crimination, family and medical leave, 

10 citizenship or immigration status, 

11 workplace safety and health, or Pro12 gram Electronic Review Management 

13 labor certification, in addition to the 

14 client employer’s responsibility for 

15 regulatory compliance. 

16 ‘‘(ii) The organization continues 

17 to have employee-benefit-plan obliga18 tions to multiple employer pension 

19 plan participants after the client em20 ployer no longer contracts with the or21 ganization. 

22 ‘‘(iii) The Secretary may determine 

23 that an organization performs substantial 

24 employment functions based upon finding 

25 that such organization meets as few as a 


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1 single criterion under subclause (I) or (II) 

2 of clause (ii).’’. 

Æ 


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