Advisory Opinion 1975-46

Dear :

This is in reply to your letter dated June 12, 1975, requesting information as to the minimum standards for any employer to be "engaged in commerce or in an industry affecting commerce" under the Employee Retirement Income Security Act of 1974 (ERISA). You would like to know if the jurisdictional standard of the Labor Management Relations Act (LMRA), as adopted by the National Labor Relations Board (NLRB), will be utilized for the purpose of determining whether or not an employer's activity or industry affects commerce.

The LMRA standards will be utilized in determining whether or not an employer's activity or industry affects commerce. However, the fact that the NLRB may fail to exert jurisdiction on policy grounds would not exempt a plan from coverage under the ERISA. Employers are deemed to be engaged in commerce or in an industry affecting commerce if any of their operations include the purchase of equipment, supplies and materials from out-of-state sources, the interstate transmission of information and correspondence, the regular and continual use of instrumentalities of interstate communications, such as the mails, telephone and tele-types, as well as interstate travel on official business.

You also raise the question as to whether the small size of the profit-sharing plans would have a bearing on the requirements under the ERISA. Plans are not exempt from coverage under the ERISA solely on the basis of size. Small profit-sharing plans are required to file Form EBS-1.

We are enclosing a copy of a regulation that was published in the Federal Register on August 15, 1975. Section 2520.104-3 thereof requires that a short form plan description consisting of the first two pages of Form EBS-1 (without schedules A, B and C) and the signature page (item 38 only) should have been filed with the Department by August 31, 1975. Late filing of the short form plan description should be accompanied by a brief explanation of the delay in filing.

A revised and simplified version of the EBS-1 was published in the Federal Register of October 10, 1975, for comment. It is expected that the final version of the EBS-1 will be issued soon after the expiration of the comment period. Section 2520.104-3 of the August 15 regulation also requires plan administrators to file the revised EBS-1 in full, as well as a copy of the summary plan description, by May 30, 1976. By the same date, a copy of the summary plan description must be furnished to plan participants and beneficiaries.