The Board of Trustees of the Sheet Metal Workers' National Pension Fund - Page 15




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          “accrued” only by an “employee”, but, once accrued, the benefit             
          is protected from diminution as long as the individual who                  
          accrued the benefit is a “participant” in the plan, whether as an           
          employee or as a retiree.4  It follows that, while a retiree may            
          enjoy COLAs added after retirement, such COLAs are not “accrued             
          benefits” as to that retiree, because the COLAs were not accrued            
          while he was an employee.  Accordingly, the later-added COLAs are           
          not protected from being diminished by operation of section                 
          411(d)(6).                                                                  
               The pertinent legislative history reinforces the                       
          understanding that ERISA was meant to protect only retirement               
          benefits “stockpiled” during an employee’s tenure on the job:               
               Unless an employee’s rights to his accrued pension                     
               benefits are nonforfeitable, he has no assurance that                  
               he will ultimately receive a pension.  Thus, pension                   
               rights which have slowly been stockpiled over many                     
               years may suddenly be lost if the employee leaves or                   
               loses his job prior to retirement.  Quite apart from                   
               the resulting hardships * * * such losses of pension                   
               rights are inequitable, since the pension contributions                
               previously made on behalf of the employee may have been                
               made in lieu of additional compensation or some other                  



               4 While 29 U.S.C. sec. 1002(6) (1994) defines “employee” as            
          “any individual employed by an employer”, 29 U.S.C. sec. 1002(7)            
          (1994) defines “participant” more expansively to include “any               
          employee or former employee”.  (Emphasis added.)  The terms                 
          “employee” and “former employee” are not interchangeable.                   
          Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-118                 
          (1989).  Additionally, while the definition of the term “accrued            
          benefit” under 29 U.S.C. sec. 1002 (23) is “an individual’s                 
          accrued benefit”, we find no indication that this term has a                
          different meaning for purposes of sec. 411(d)(6).                           





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Last modified: May 25, 2011