The Employee Retirement Security Income Act (ERISA) provides minimum standards for pension and health care plans. By its plain terms, ERISA Section 3(32) exempts “a plan established or maintained for its employees by the government of the United States, by the government of any state or political subdivision thereof, or by any agency or instrumentality of any of the foregoing” from ERISA regulation. In practice, this mandate operates to exclude federal and state health care and pension plans, as well as certain plans run by hospital authorities, universities, school districts and transit authorities.

Notwithstanding this language, courts are increasingly confronted with the issue of when or if “government plans” might be ERISA-regulated plans. Courts have wrestled with the language “established or maintained” and generally concluded that a “governmental plan” may nonetheless be ERISA-regulated where 1) at the time of formation, the plan included both public and private entities, 2) the plan is not maintained by a governmental agency, or 3) more than a de minimus number of private employees participate in the plan.

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