Macy’s dropped its ERISA suit, but the voluntary benefits risk remains

That assumption depends on a Department of Labor (DOL) safe harbor at 29 C.F.R. § 2510.3-1(j), which has four conditions: no employer contributions, completely voluntary participation, no employer endorsement and an employer role limited to payroll deduction. All four must hold. The DOL has applied the same test in an advisory opinion on whether a group insurance program meets the safe harbor. Plaintiffs in this litigation argue that employers step outside it when they allegedly endorse the programs, for instance by choosing the broker and carriers or folding the products into branded enrollment materials.

Form 5500 filings are another sticking point. Some complaints in the earlier wave pointed to employers’ own annual filings as an acknowledgment that the programs were ERISA plans, according to the original reporting. That detail should be confirmed against the complaints.

How plaintiffs pick their targets

Broker commissions on voluntary benefits appear on Schedule A of Form 5500, which employers filing these benefits as ERISA plans submit to the DOL each year. The data is public, and plaintiffs’ lawyers can benchmark it across employers.

The Munson complaint does exactly that. It alleges Macy’s paid 50.8 percent of premiums in broker commissions in 2019. It sets that against Target’s Schedule A, which reportedly showed about $214 in total commissions the same year for the same products, through the same broker, Aon, and the same carrier. The complaint also describes a “heaped” commission pattern, in which switching carriers triggers a large first-year payout and smaller renewals. Commissions in the Macy’s program allegedly reached 62.8 percent of premiums in 2022, when coverage moved from an Allstate subsidiary to an Aflac subsidiary. Whether that amounts to a breach is for the courts to decide.

A wave, not a one-off

A JD Supra analysis dated February 4, 2026, reported that on December 23, 2025, four large employers and several national benefits consulting firms were sued over employee-paid voluntary benefits, the first time plaintiffs tested ERISA fiduciary standards in this space. Law360 reported on July 31, 2026, that the trend appears to be gaining ground, according to experts it interviewed.