ERISA Section 510 Retaliation Claims: Scope of “Giving Information”

Section 510 of ERISA, 29 U.S.C. § 1140, prohibits retaliation “against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this [Act]”.   In George v. Junior Achievement of Cent. Ind., Inc., No. 11-3291, 2012 U.S. App. LEXIS 18571 (7th Cir. Sept. 4, 2012), the plaintiff, when he discovered that money withheld from his pay was not being deposited into his retirement account and health savings account, lodged complaints with the defendant’s accountants and some of its executives.  Thereafter, Mr. George was terminated, and he alleged that his internal protests led to his firing.  The question presented was whether unsolicited internal corporate complaints qualify as “giving information” within the meaning of Section 510.  The Seventh Circuit, Chief Judge Easterbrook writing for the panel, held that “the best reading of Section 510 is one that divides the world into the informal sphere of giving information in or in response to inquiries and the formal sphere of testifying in proceedings.”  Noting that the courts have split on this issue, Chief Judge Easterbrook held that the plaintiff had pled a Section 510 complaint, stating that “an employee’s grievance is within Section 510’s scope whether or not the employer solicited information.”  The Court was quick to emphasize that that did not mean “that § 510 covers trivial bellyaches – the statute requires the retaliation to be ‘because’ of a protected activity….”  (citation omitted). 

Some courts have observed, with respect to Section 510, that “testify” and “proceeding” denote formal actions and that “inquiry” should be understood to only encompass a formal proceeding.  See Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 222-24 (3d Cir. 2010); Nicolaou v. Horizon Media, Inc., 402 F.3d 325, 330 (2d Cir. 2005); King v. Marriott Int’l, Inc., 337 F.3d 421, 427-28 (4th Cir. 2003).  In contrast, the Fifth and Ninth Circuits have held that Section 510 applies to unsolicited informal complaints.  See Anderson v. Electric Data Sys. Corp., 11 F.3d 1311, 1313, 1315 (5th Cir. 1994); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411 (9th Cir. 1993). 

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