Hansen v. Laboratory Corporation of America
Filing
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DECISION AND ORDER ON PLAINTIFF'S MOTION TO REMAND signed by Magistrate Judge Nancy Joseph on 10/24/2024. IT IS HEREBY ORDERED that Plaintiff's Motion to Remand to State Court (Docket # 9 ) is GRANTED. The case is remanded to Milwaukee County Circuit Court. IT IS FURTHER ORDERED that Defendant's Motion to Dismiss (Docket # 6 ) is DENIED AS MOOT. (cc: all counsel)(rcm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KATIE HANSEN,
Plaintiff,
v.
Case No. 24-CV-807
LABORATORY CORPORATION OF
AMERICA,
Defendant.
DECISION AND ORDER ON PLAINTIFF’S MOTION TO REMAND
______________________________________________________________________________
On May 28, 2024, Katie Hansen filed a complaint in state court against Laboratory
Corporation of America (“Labcorp”) alleging a violation of Wis. Stat. § 109.03. Labcorp
subsequently removed the action to this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446.
Hansen now moves to remand the case back to state court on the grounds that this Court
lacks subject matter jurisdiction. For the reasons stated below, Hansen’s motion to remand is
granted. Labcorp’s pending motion to dismiss is denied as moot.
BACKGROUND
Hansen sued her employer, Labcorp, in Milwaukee County Circuit Court alleging
Labcorp violated Wis. Stat. § 109.03 by failing to pay short-term disability (“STD”) benefits
allegedly due under Labcorp’s employee benefits plan (the “Plan”). (Compl., Docket # 1-1.)
On June 28, 2024, Labcorp removed the action to this Court on the grounds that Labcorp’s
Plan is governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001
et seq. (“ERISA”) and thus falls under federal jurisdiction. (Docket # 1.) After removal,
Labcorp moved to dismiss Hansen’s complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing
that Hansen’s state law claim is preempted by ERISA. (Docket # 6.)
Hansen responded with a motion to remand the case to state court and hold Labcorp’s
motion to dismiss in abeyance pending resolution of the remand motion. (Docket # 9.)
Hansen argues that Labcorp’s STD plan is a payroll practice exempt from ERISA under 29
C.F.R. § 2510.3-1(b)(2). (Docket # 9.) As such, Hansen argues this Court lacks subject matter
jurisdiction and the case must be remanded. (Id.) Labcorp objects to Hansen’s remand motion
but does not address Hansen’s motion to hold the motion to dismiss in abeyance.
LEGAL FRAMEWORK
“If at any time before final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Although Hansen
moves to remand the case, because Labcorp removed the case to federal court, it bears the
burden of proving that this Court has subject matter jurisdiction. Wisconsin v. Abbott Labs., 341
F. Supp. 2d 1057, 1060 (E.D. Wis. 2004) (citing Tykla v. Gerber Products Co., 211 F.3d 445,
448 (7th Cir. 2000)). “To meet this burden, defendants must support their allegations of
jurisdiction with evidence indicating a ‘reasonable probability that jurisdiction exists.’” Id.
(quoting Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997)). In
determining whether removal was proper, a district court must construe the removal statute,
28 U.S.C. § 1441, narrowly and resolve any doubts regarding subject matter jurisdiction in
favor of remand. Id.
ANALYSIS
Hansen alleges she has been disabled under Labcorp’s STD plan since April 18, 2023
and that Labcorp improperly denied her claim for STD benefits, prompting her to file a
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lawsuit in state court under Wisconsin’s wage laws. (Compl., Docket # 1-1.) Labcorp
removed Hansen’s Wisconsin wage law case on the grounds that federal question jurisdiction
exists, specifically, that the STD plan is subject to ERISA. (Notice of Removal ¶ 5.) Hansen
argues, however, that the STD plan is a “payroll practice” exempt from ERISA. See 29 C.F.R.
§ 2510.3-1(b)(2). Thus, to determine whether jurisdiction in this Court is proper, the question
is whether Labcorp’s STD plan is subject to ERISA.
1.
ERISA Framework
ERISA was passed by Congress in 1974 to safeguard employees from the abuse and
mismanagement of funds that had been accumulated to finance various types of employee
benefits. Massachusetts v. Morash, 490 U.S. 107, 112 (1989). ERISA defines an “employee
welfare benefit plan” in relevant part as “any plan, fund, or program which was . . . established
or maintained by an employer . . . to the extent that such plan, fund, or program was
established or is maintained for the purpose of providing for its participants or their
beneficiaries, through the purchase of insurance or otherwise . . . benefits in the event of . . .
disability . . . .” 29 U.S.C. § 1002(1). ERISA gives the Secretary of Labor the express authority
to prescribe regulations “necessary or appropriate to carry out the provisions of this
subchapter.” 29 U.S.C. § 1135. One such regulation provides that even if a plan constitutes
an “employee welfare benefit plan” under ERISA, certain “payroll practices” are exempt,
including:
Payment of an employee’s normal compensation, out of the employer’s general
assets, on account of periods of time during which the employee is physically
or mentally unable to perform his or her duties, or is otherwise absent for
medical reasons (such as pregnancy, a physical examination or psychiatric
treatment)
29 C.F.R. § 2510.3-1(b)(2). The Supreme Court in Morash explained that the purpose of this
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“payroll practice” exemption was to distinguish between “the benefit programs covered by
the Act and the types of regular compensation, including vacation pay, that are not covered.”
490 U.S. at 117. The Court noted that the states have traditionally regulated the payment of
“wages,” including such things as sick pay and vacation pay. Id. at 119. The Court further
noted that when “‘employees are paid as a part of their regular compensation directly by the
employer and under which no separate fund is established,’” id. at 117 (quoting 39 Fed. Reg.
42236 (1974)), the employees face less risks and have less need for ERISA’s reporting and
disclosure requirements than employees who are beneficiaries of a trust, id. at 120. See also
McMahon v. Digital Equip. Corp., 162 F.3d 28, 36 (1st Cir. 1998) (“Where an employer pays
occasional, temporary benefits from its general assets, there is no benefits fund to abuse or
mismanage and no special risk of loss or nonpayment of benefits.”).
The burden is on the party claiming that an ERISA plan exists to show that the benefit
plan is an ERISA plan. Havey v. Tenneco, Inc., No. 98 C 7137, 2000 WL 198445, at *8 (N.D.
Ill. Feb. 11, 2000). This is true even when the opposing party is invoking a regulation that
excepts the plan from being an ERISA plan. Id.
2.
“Payroll Practice” Exemption
Hansen asserts that the STD benefits fall under the regulation’s “payroll practice”
exemption. Labcorp, on the other hand, argues that the STD benefits it provides are merely
one part of a single group benefits plan governed by ERISA and that the STD benefits cannot
be considered independent of the plan as a whole. (Docket # 14 at 5–6, 9–12.) Alternatively,
Labcorp argues that even if its STD benefits fall within the “payroll practice” exemption,
pursuant to the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, 144 S.
Ct. 2244 (2024), the Department of Labor acted outside of its authority when it promulgated
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this exemption and thus the regulation must be disregarded. (Id. at 13–16.)
During the relevant period, Labcorp had in place multiple benefit plans providing its
employees coverages such as medical, dental, vision, flexible spending accounts, no charge
laboratory testing, long-term disability, and short-term disability. (Notice of Removal ¶ 5, Ex.
B, Docket # 1-2.) The “Overview Section” at the beginning of the 2023 Labcorp Personal
Choice Benefits Handbook (the “Handbook”) states that:
This information is part of your Personal Choice Benefits Handbook for 2023,
which constitutes the summary plan description (SPD) for the Labcorp health
and welfare and retirement plans offered through the Labcorp Personal Choice
Benefits Program subject to the Employee Retirement Income Security Act of
1974 (ERISA), the federal law that governs certain employee benefit plans.
(Docket # 1-2 at 10.) The Handbook further contains a section at the end entitled “Your
Rights Under ERISA.” (Id. at 86–87.) The Handbook also articulates the contribution and
funding source for each benefit plan in the “Plan Information” section. (Id. at 83–84.) The
Handbook states that Labcorp’s STD plan is “self-funded; Labcorp pays all costs” whereas its
long-term disability plan is “Insured; Labcorp and participants pay premiums.” (Id. at 84.)
As articulated above, the regulations provide that an “employee welfare benefit plan”
does not include payment of (1) an employee’s normal compensation, (2) out of the
employer’s general assets, (3) due to an absence for medical reasons. 29 C.F.R. § 2510.31(b)(2). It appears that Labcorp’s STD plan meets these regulatory requirements for a “payroll
practice.” First, Labcorp’s STD benefits are paid “through regular Labcorp payroll according
to your normal payroll cycle” and that all “normal payroll deductions” (with the exception of
Employee Stock Purchase contributions) “will continue.” (Docket # 1-2 at 52.) Second, the
STD plan is “self-funded,” with Labcorp paying all costs. (Id. at 84.) And third, the STD
benefits are provided if an employee is “unable to perform one or more of the material duties
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of your regular occupation solely because of disease, injury or pregnancy.” (Id. at 52.)
Labcorp fails to address the heart of Hansen’s argument, that its STD plan appears to
fit the regulatory definition of an exempt “payroll practice.” Instead, Labcorp argues that
under the First Circuit’s decision in McMahon, even if short-term disability benefits are paid
out of an employer’s general assets, it does not constitute a “payroll practice” so long as the
employer treated the plan as one covered by ERISA; the employer assured employees they
were entitled to ERISA’s protections; and the plan was funded, in part, by an insurance
contract and trust fund and was secured by a fidelity bond. (Docket # 14 at 9, citing McMahon,
162 F.3d at 37–38.)
In McMahon, plaintiff McMahon sued her former employer, Digital, under ERISA and
various state laws for allegedly improperly denying her short-term and long-term disability
benefits. 162 F.3d at 31. The case was removed to federal court and the district court found
McMahon’s state law claims preempted by ERISA. Id. On appeal, McMahon argued that her
short-term disability benefits were a “payroll practice” exempt from ERISA; thus, her state
law claims were not preempted by federal law. Id. at 31–32.
Digital’s short-term disability benefits program included three separate plans—a “Sick
Pay Plan,” an “Accident and Sickness Plan,” and a “Salary Continuation Plan.” Id. at 33.
McMahon was subject to the Salary Continuation Plan and was eligible for up to six months
of short-term disability leave with full salary. Id. Digital considered the “Accident and
Sickness Plan” and the “Salary Continuation Plan” to be components of a single short-term
disability plan, labeled “Plan 502.” Id. at 34. The 5500 Forms for Plan 502 show that Digital
did not fund Plan 502 solely out of its general assets; rather, during both the 1991 and 1992
plan years, the Plan was partially funded by an insurance contract (though the insurance
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contract was limited to New York employees) and was secured during both plan years by a
$500,000 fidelity bond. Id.
The First Circuit found that the record evidence did not support that Digital’s shortterm disability program was an exempt “payroll practice.” Id. at 37. The court found that the
record demonstrated that Digital treated the “Accident and Sickness Plan” and the “Salary
Continuation Plan” as two components of a single ERISA short-term benefits plan and that
benefits under both plans were partially funded by insurance and secured by a fidelity bond.
Id. The court stated that “McMahon’s payroll practice argument is wrong because her benefits
derived from an employee welfare benefit plan (Plan 502) that was supported by assets outside
of Digital’s general operating funds. Such a plan cannot be a payroll practice under the express
terms of 29 C.F.R. § 2510.3–1(b)(2).” Id. In so holding, however, the court clarified that “[w]e
do not hold that an employer’s mere labeling of a plan determines whether a plan is an ERISA
plan . . . . But where, as here, an employer partially funds a plan from sources outside of its
general assets, files documents with the Department of Labor and the IRS consistent with the
plan’s ERISA status, and informs employees that the plan is subject to ERISA regulation, we
find that the plan is an ERISA plan and not a payroll practice.” Id. at 38.
Labcorp likens its case to McMahon, arguing that even if a plan otherwise meets all of
the elements of 29 C.F.R. § 2510.3-1(b)(2), including paying benefits out of the employer’s
general assets, the plan can still fall under ERISA so long as the employer treats the plan as
an ERISA plan. (See Docket # 14 at 11.) Labcorp argues that it did just that, stating that it
complied with IRS requirements and reported the STD plan as an ERISA Plan pursuant to
Form 5500, as well as informed its employees of their rights under ERISA. (Id. at 9–10.) But
the McMahon court was careful to state that an employer’s labeling of a plan does not
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determine whether it is subject to ERISA. 162 F.3d at 37–38. Further, in determining whether
a “plan” has been established within the meaning of ERISA, “the fact that Defendant
complied with some of ERISA’s requirements is not enough by itself to establish that the . . .
policy constitutes an ERISA plan.” Clevenger v. Securitas Sec. Servs. USA, Inc., No. 07-CV-2219,
2008 WL 2168742, at *7 (C.D. Ill. May 22, 2008). Nor is the way in which an employer
characterizes its plan dispositive in determining ERISA coverage. Id.
In McMahon, the court found that because the plan at issue was not funded solely from
the employer’s general assets, it could not constitute a “payroll practice” under the
regulation’s express terms. 162 F.3d at 37–38. Therein lies a vital distinction between the plan
at issue in McMahon and Labcorp’s plan—Labcorp’s plan is funded solely from the employer’s
general assets thus it does constitute a “payroll practice” under the regulation’s express terms.1
Furthermore, while Labcorp insists that the STD plan meets the definition of an
ERISA plan (Docket # 14 at 5), what the “payroll practice” regulation does is exempt certain
practices from ERISA, even if the plan would otherwise meet the definition of an ERISA
“plan.” The regulation “has exempted from ERISA certain benefit programs, called ‘payroll
practices,’ that fall within the statute’s scope.” Vagnoni v. Sears, Roebuck & Co., No. 98 C 5308,
2002 WL 54542, at *4 (N.D. Ill. Jan. 15, 2002) (“It is undisputed that Sears paid STD benefits
entirely from its own assets. . . . As such, Sears’ STD plan is a payroll practice, not an ERISA
plan.”). In other words, even if a Plan would otherwise fall under the definition of an
“employee welfare benefit plan,” the regulation serves to take certain payroll practices out of
that definition.
Labcorp cites two other cases, Diak v. Dwyer, Costello & Knox, P.C., 33 F.3d 809 (7th Cir. 1994) and Fort Halifax
Packing Co. v. Coyne, 482 U.S. 1 (1987), arguing they also stand for the proposition that benefits paid out of
general funds are subject to ERISA. (Docket # 14 at 11–12 n.1.) But neither Diak nor Fort Halifax address the
“payroll practice” exception to ERISA and thus are of limited value on this question.
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Finally, Labcorp argues, citing Postma v. Paul Revere Life Ins. Co., 223 F.3d 533 (7th Cir.
2000) in support, that for purposes of determining whether a benefit plan is subject to ERISA,
so long as a disability policy is part of a broader benefits package subject to ERISA, that policy
is also an ERISA plan. (Def.’s Br. at 10, citing Postma, 223 F.3d at 538.) Labcorp relies on the
Postma court’s statement that “For purposes of determining whether a benefit plan is subject
to ERISA, its various aspects ought not be unbundled.” 223 F.3d at 538. In Postma, plaintiff
Postma enrolled in a long-term disability insurance program provided by Paul Revere Life
Insurance Company. Postma was injured and was eventually terminated from her position.
After having difficulty securing work within her work restrictions, Postma filed a claim for
disability benefits. Paul Revere denied her claim. Postma sued Paul Revere for breach of
contract and for breach of the implied covenant of good faith and fair dealing.
The parties disputed whether Paul Revere’s LTD plan was governed by ERISA. Id. at
536–37. Specifically, the parties disputed whether the plan was “established or maintained by
an employer” as required by 29 U.S.C. § 1002(1). The court noted that an “employer
establishes or maintains a plan if it enters a contract with the insurer and pays its employees’
premiums” and stated that to “help determine whether an insurance plan falls under ERISA,
the Department of Labor’s regulations, through a ‘safe harbor’ provision, provide a guideline
for when a plan does not fall under ERISA.” 223 F.3d at 537. The court then considered 29
C.F.R. § 2510.3-1(j), which addresses certain “group or group-type insurance programs” and
exempts from ERISA insurance programs where the employer makes no contributions,
participation is voluntary for employees, the sole function of the employer is publicizing and
collecting premiums from the employees, and the employer receives no consideration in
connection with the program other than reasonable compensation for administrative services
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actually rendered.
The court determined that the Paul Revere insurance plan was subject to ERISA
because the plan failed to meet the criteria outlined in the “safe harbor” regulation, for
example, the employer purchased the plan and paid the employee’s premiums and the LTD
benefits was not an optional benefit for all employees. Id. at 537–38. The court also stated
that:
We note, further, that, throughout its existence, the disability policy was part
of a broader benefits package maintained by CPG for its employees. Many
aspects of that plan were financed in whole or in part by CPG. For purposes of
determining whether a benefit plan is subject to ERISA, its various aspects
ought not be unbundled.
Id. at 538.
Relying on Postma, Labcorp argues that the payroll exception is also a “safe harbor”
like § 2510.3-1(j) and that its STD plan ought not to be “unbundled” from the other benefits
under the Plan. (Def.’s Br. at 11.) It argues that the payroll exception “merely acts as a shield
for employers seeking to avoid the requirements and liabilities of an ERISA Plan; not as a
sword for participants to utilize the ERISA rights afforded to them under the Plan, only to
turn around and claim that the benefits that the employer receives for providing these
burdensome employee rights should not apply.” (Id. at 12.) But this regulation is neither a
sword nor a shield: its purpose is to “clarify the definition of the terms ‘employee welfare
benefit plan’” and to list practices that “do not constitute employee pension benefit plans”
within the meaning of the Act. See § 2510.3-1(1). And I do not read Postma as holding that so
long as one benefit in an overall benefit plan is covered by ERISA, it follows that the exempt
practices listed in § 2510.3-1 are no longer exempt. The Postma court had already determined
that the LTD policy did not meet the exemption listed in § 2510.3-1(j). The quoted language
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on which Labcorp relies is dicta and does not clearly stand for the proposition Labcorp asserts.
Labcorp bears the burden of showing that the STD policy falls under ERISA, as well
as bears the burden of showing this Court has subject-matter jurisdiction. As stated above, the
removal statute is construed narrowly and courts should resolve any doubts regarding subjectmatter jurisdiction in favor of remand.
Labcorp’s STD policy falls under the express terms of 29 C.F.R. § 2510.3-1(b)(2) and
Labcorp has failed to meet its burden of showing this Court has subject-matter jurisdiction.
Thus, remand is proper.
3.
Viability of Payroll Practices Exemption After Loper
Finally, Labcorp argues that under the Supreme Court’s recent decision in Loper, even
if its STD benefits fall within the payroll exemption, the regulation should be disregarded
because the Department of Labor lacked statutory authority to promulgate it and the
regulation conflicts with the plain language of ERISA. (Def.’s Br. at 13–16.) Labcorp reads
Loper far too broadly. Loper does not stand for the proposition that all regulations promulgated
by federal agencies must be disregarded. Rather, what Loper did was overturn the Court’s twostep framework to interpret statutes administered by federal agencies as articulated in Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). The Chevron framework is as
follows:
After determining that a case satisfies the various preconditions we have set for
Chevron to apply, a reviewing court must first assess “whether Congress has
directly spoken to the precise question at issue.” If, and only if, congressional
intent is “clear,” that is the end of the inquiry. But if the court determines that
“the statute is silent or ambiguous with respect to the specific issue” at hand,
the court must, at Chevron’s second step, defer to the agency’s interpretation if
it “is based on a permissible construction of the statute.”
Loper, 144 S. Ct. at 2254 (internal citations omitted). But the Loper Court found that statutory
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ambiguity is not a delegation of authority to an agency; rather, it is the obligation of the courts
to independently interpret statutes. Id. at 2266. The Court concluded that courts “must
exercise their independent judgment in deciding whether an agency has acted within its
statutory authority, as the APA requires” and when “a particular statute delegates authority
to an agency consistent with constitutional limits, courts must respect the delegation, while
ensuring that the agency acts within it. But courts need not and under the APA may not defer
to an agency interpretation of the law simply because a statute is ambiguous.” Id. at 2273.
Labcorp’s contention that the Department of Labor was not given authority to
promulgate the payroll exception (Def.’s Br. at 13–14) is unsupported. ERISA specifically
confers on the Department of Labor the authority to prescribe regulations the Secretary finds
“necessary or appropriate to carry out the provisions of this subchapter,” including defining
“technical and trade terms used in such provisions.” 29 U.S.C. § 1135. The regulation at issue,
29 C.F.R. § 2510.3-1, is clarifying the definition of an “employee welfare benefit plan,”
include certain practices (such as payroll practices) that do not fall under the definition of
“employee welfare benefit plan.” The Loper Court acknowledged that Congress has often
enacted statutes that give an agency a degree of discretion, including giving the agency the
authority to give meaning to a particular statutory term. 144 S. Ct. at 2263. In those cases,
“the role of the reviewing court under the APA is, as always, to independently interpret the
statute and effectuate the will of Congress subject to constitutional limits. The court fulfills
that role by recognizing constitutional delegations, fixing the boundaries of the delegated
authority, and ensuring the agency has engaged in reasoned decisionmaking within those
boundaries.” Id. (internal quotations and citations omitted).
Labcorp argues that the Department of Labor overstepped its bounds in promulgating
12
the payroll practices exception, stating that Congress enacted expansive coverage to induce
employers to offer benefits to employees and to ensure that employees would receive the
benefits that they earned. (Def.’s Br. at 15.) But the Supreme Court has already considered
and upheld the payroll practices exception in Morash. See 490 U.S. at 120–21 (“It is sufficient
for this case that the Secretary’s determination that a single employer’s administration of a
vacation pay policy from its general assets does not possess the characteristics of a welfare
benefit plan constitutes a reasonable construction of the statute.”). In Morash, the Supreme
Court stated that Congress’ “primary concern” in enacting ERISA “was with the
mismanagement of funds accumulated to finance employee benefits and the failure to pay
employees benefits from accumulated funds.” 490 U.S. at 115. The Court concluded that
employees “who are beneficiaries of [ ] a trust face far different risks and have far greater need
for the reporting and disclosure requirements that the federal law imposes than those whose
vacation benefits come from the same fund from which they receive their paychecks.” Id. at
120. The same is true for STD plans that also meet the regulatory definition of a payroll
practice. Again, when an employer pays temporary benefits from general assets, “there is no
benefits fund to abuse or mismanage and no special risk of loss or nonpayment of benefits.”
McMahon, 162 F.3d at 36.
Although Morash predates Loper, the Loper Court was clear that its decision does “not
call into question prior cases that relied on the Chevron framework. The holdings of those cases
that specific agency actions are lawful . . . are still subject to statutory stare decisis despite our
change in interpretive methodology.” 144 S. Ct. at 2273. For these reasons, Labcorp has not
shown the payroll practices regulation is unlawful under Loper.
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CONCLUSION
Hansen sued her employer, Labcorp, in state court alleging Labcorp violated
Wisconsin law by failing to pay her STD benefits she was allegedly owed. Labcorp removed
Hansen’s lawsuit to federal court, arguing that Hansen’s claim falls under ERISA and thus
federal jurisdiction is proper. I find that Labcorp’s STD benefits fall under the regulation
exempting certain “payroll practices” from the definition of “employee welfare benefit plan”
and thus does not fall under ERISA. As such, there is no federal jurisdiction in this case.
While Labcorp argues the regulation establishing exempt “payroll practices” should be
disregarded after the Supreme Court’s recent decision in Loper doing away with Chevron
deference, I find that the regulation was lawfully promulgated.
Labcorp bears the burden of showing that its plan is covered by ERISA, as well as the
burden of showing that subject matter jurisdiction is proper before this Court. I find that
Labcorp failed to meet its burden as to both questions. Thus, Hansen’s motion to remand is
granted. Labcorp’s pending motion to dismiss is denied as moot.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s Motion to
Remand to State Court (Docket # 9) is GRANTED. The case is remanded to Milwaukee
County Circuit Court.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss (Docket # 6) is
DENIED AS MOOT.
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Dated at Milwaukee, Wisconsin this 24th day of October, 2024.
BY THE COURT:
___________________________
______________
___
_ ___________
NANCY JOSEPH
United States Magistrate Judge
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