Voice asymmetries in ERISA litigation

Abstract

ERISA’s equitable remedies limit employees’ access to the courts. The law fails to protect workers with short tenure and low wages, for example female workers, because trial costs often exceed damages. In single-employer plans, unions improve access, but in multiemployer plans they do not. The reason is that in single-employer plans unions bargain at arm’s length with plan sponsors while in multiemployer plans they do not. Plaintiffs’ win rates are approximately 50 percent in singleemployer union ERISA cases but are significantly below 50 percent in nonunion and multiemployer cases.