The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOWARD JARVIS TAXPAYERS No. 20-15591
ASSOCIATION; JONATHAN MARK
COUPAL; DEBRA A. DESROSIERS, D.C. No.
Plaintiffs-Appellants, 2:18-cv-01584-
MCE-KJN
v.
CALIFORNIA SECURE CHOICE OPINION
RETIREMENT SAVINGS PROGRAM;
JOHN CHIANG, California State
Treasurer,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted February 8, 2021
San Francisco, California
Filed May 6, 2021
Before: Andrew D. Hurwitz and Daniel A. Bress, Circuit
Judges, and Clifton L. Corker, * District Judge.
Opinion by Judge Bress
*
The Honorable Clifton L. Corker, United States District Judge for
the Eastern District of Tennessee, sitting by designation.
2 HJTA V. CAL. SECURE CHOICE
SUMMARY **
Employee Retirement Income Security Act
Affirming the district court’s dismissal, the panel held
that ERISA does not preempt a California law that creates
CalSavers, a state-managed individual retirement account
program for eligible employees of certain private employers
that do not provide their employees with a tax-qualified
retirement savings plan.
The panel held that Congress’s repeal of a 2016
Department of Labor rule that sought to exempt CalSavers
from ERISA under a safe harbor did not resolve the
preemption question. Further, even if ERISA’s safe harbor
did not apply to CalSavers, the panel would still need to
determine whether CalSavers otherwise qualified as an
ERISA program.
The panel concluded that CalSavers is not an ERISA
plan because it is established and maintained by the State,
not employers; it does not require employers to operate their
own ERISA plans; and it does not have an impermissible
reference to or connection with ERISA. Nor does CalSavers
interfere with ERISA’s core purposes. Accordingly, ERISA
does not preempt the California law.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HJTA V. CAL. SECURE CHOICE 3
COUNSEL
Laura E. Dougherty (argued), Jonathan M. Coupal, and
Timothy A. Bittle, Howard Jarvis Taxpayers Foundation,
Sacramento, California, for Plaintiffs-Appellants.
Sharon L. O’Grady (argued), Deputy Attorney General; Paul
Stein, Supervising Deputy Attorney General; Thomas S.
Patterson, Senior Assistant Attorney General; Office of the
Attorney General, San Francisco, California; R. Bradford
Huss, Joseph C. Faucher, and Angel L. Garrett, Trucker
Huss APC, San Francisco, California; for Defendants-
Appellees.
Peter K. Stris, Rachana A. Pathak, Douglas D. Geyser, and
John Stokes, Stris & Maher LLP, Los Angeles, California;
Barbara R. Van Zomeren, Ascensus LLC, Brainerd,
Minnesota; for Amicus Curiae Ascensus LLC.
Dara S. Smith and William Alvarado Rivera, AARP
Foundation Washington, D.C.; Jeffrey Lewis, Erin Riley,
and Rachel E. Morowitz, Keller Rohrback LLP, Seattle,
Washington; for Amici Curiae AARP, AARP Foundation,
California Hispanic Chamber of Commerce, Small Business
California, Small Business Majority, Unidosus, United
Ways of California, and Western Center on Law and
Poverty.
Ellen F. Rosenblum, Attorney General, Office of the
Attorney General, Salem, Oregon; Kwame Raoul, Attorney
General; Jane Elinor Notz, Solicitor General; Sarah A.
Hunger, Deputy Solicitor General; Office of the Attorney
General, Chicago, Illinois; for Amici Curiae States of Illinois
and Oregon.
4 HJTA V. CAL. SECURE CHOICE
OPINION
BRESS, Circuit Judge:
This case presents a novel and important question in the
law governing retirement benefits: whether the federal
Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001, et seq., preempts a California
law that creates a state-managed individual retirement
account (IRA) program. The program, CalSavers, applies to
eligible employees of certain private employers in California
that do not provide their employees with a tax-qualified
retirement savings plan. Eligible employees are
automatically enrolled in CalSavers, but may opt out. If they
do not, their employer must remit certain payroll deductions
to CalSavers, which funds the employees’ IRAs. California
manages and administers the IRAs and acts as the program
fiduciary. Citing a need to encourage greater savings among
future retirees, other States have enacted similar state-
managed IRA programs in recent years. To our knowledge,
this is the first case challenging such a program on ERISA
preemption grounds.
We hold that the preemption challenge fails. CalSavers
is not an ERISA plan because it is established and
maintained by the State, not employers; it does not require
employers to operate their own ERISA plans; and it does not
have an impermissible reference to or connection with
ERISA. Nor does CalSavers interfere with ERISA’s core
purposes. ERISA thus does not preclude California’s
endeavor to encourage personal retirement savings by
requiring employers who do not offer retirement plans to
participate in CalSavers. We therefore affirm the judgment
of the district court.
HJTA V. CAL. SECURE CHOICE 5
I
A
In 2017, the California Legislature enacted the CalSavers
Retirement Savings Trust Act, which implemented the
CalSavers program (previously known as “California Secure
Choice”). See Cal. Gov’t Code § 100000, et seq. CalSavers
is a state-run IRA savings program for certain private
employees. See id. §§ 100002, 100004, 100008. Its
objective is to encourage greater retirement savings among
employees whose employers do not offer retirement plans.
See Savings Arrangements Established by States for Non-
Governmental Employees, 81 Fed. Reg. 59464, 59464–65
(Aug. 30, 2016) (describing how California and other states
have enacted “automatic enrollment” programs to
“encourage employees to establish tax-favored IRAs funded
by payroll deductions”).
CalSavers’s automatic enrollment requirement applies
only to an “Eligible employee” of an “Eligible employer.”
Cal. Gov’t Code §§ 100000(c)–(d), 100032. Eligible
employees are defined as California employees who are at
least eighteen years old and employed by an eligible
employer. Id. § 100000(c); Cal. Code Regs. tit. 10,
§ 10000(l), (n). Eligible employers are defined as non-
governmental employers with five or more employees in
California. Cal. Gov’t Code § 100000(d); Cal. Code Regs.
tit. 10, § 10000(m). The sole exclusion is for an “Exempt
Employer,” Cal. Code Regs. tit. 10, § 10000(q), that
provides either an “employer-sponsored retirement plan” or
an “automatic enrollment payroll deduction IRA” that
“qualifies for favorable federal income tax treatment.” Cal.
Gov’t Code § 100032(g)(1).
6 HJTA V. CAL. SECURE CHOICE
Compliance with CalSavers is mandatory for non-
exempt eligible employers, who must register with the
CalSavers program. Id. § 100032(b)–(d); Cal. Code Regs.
tit. 10, § 10002. Exempt employers may, but are not
required to, inform the CalSavers Administrator of their
exemption. Cal. Code Regs. tit. 10, § 10001(d). Eligible
employers who later become ineligible (for example, those
who later create their own ERISA plans) must inform the
CalSavers Administrator within 30 days of their change in
status. Id. § 10001(c). Exempt employers are “prohibited
from participating in the Program.” Id. § 10002(d).
CalSavers describes itself as “a state-administered
program, not an employer-sponsored program.” Cal. Gov’t
Code § 100034(b). To that end, CalSavers forbids
employers from taking a variety of actions. Employers may
not “[r]equire, endorse, encourage, prohibit, restrict, or
discourage employee participation in” CalSavers. Cal. Code
Regs. tit. 10, § 10003(d)(1). Nor may employers advise
employees regarding CalSavers contribution rates or
investment decisions or “[e]xercise any authority, control, or
responsibility regarding” the program. Id. § 10003(d)(2),
(4). Employers “are prohibited from contributing to a
Participating Employee’s Account.” Id. § 10005(c)(1).
Employers also “shall not have any liability for an
employee’s decision to participate in, or opt out of, the
program”; “shall not be a fiduciary, or considered to be a
fiduciary over the trust or the program”; “shall not be liable
as plan sponsors”; and “shall not bear responsibility for the
administration, investment, or investment performance of
the program.” Cal. Gov’t Code § 100034(a), (b).
Anticipating the legal challenge we address here, the
statute creating CalSavers maintains that “the roles and
responsibilities of employers” have been defined “in a
HJTA V. CAL. SECURE CHOICE 7
manner to keep the program from being classified as an
employee benefit plan subject to the federal Employee
Retirement Income Security Act [(ERISA)].” Cal. Gov’t
Code § 100043(b)(1)(C). CalSavers imposes three basic
duties on eligible employers. They must first register for
CalSavers by providing their basic identification and contact
information. Cal. Code Regs. tit. 10, § 10002(f). Within
thirty days of registration, they must provide CalSavers with
certain contact and identifying information for their eligible
employees. Id. § 10003(a). They must also set up “a payroll
deposit retirement savings arrangement,” Cal. Gov’t Code
§ 100032(b), through which they can remit employees’
contributions to the CalSavers Trust. Cal. Code Regs. tit. 10,
§ 10003(c). Regulations set a 5% default rate of
contribution, though employees may adjust their rate. Id.
§ 10005(a)(1), (b)(1). An eligible employer that “fails to
allow its eligible employees to participate” in CalSavers is
subject to penalties. Cal. Gov’t Code § 100033(b).
After an eligible employer registers with CalSavers, the
CalSavers Administrator delivers to all eligible employees
an information packet describing the program. Cal. Code
Regs. tit. 10, § 10004(a). Upon receiving the information
packet, employees have thirty days to opt out; otherwise,
they are automatically enrolled in CalSavers. Id. § 10004(b).
Employees may opt out electronically, by telephone, or by
mail. Id. § 10004(d); see also Cal. Gov’t Code
§ 100032(f)(1). Even after enrollment, employees may opt
out of CalSavers at any time. Cal. Code Regs. tit. 10,
§ 10004(d). Employees’ contributions are made to a Roth
IRA, id. § 10005(a)(3), but employees may choose to
recharacterize all or some of their contributions to a
traditional IRA, id. § 10005(c)(4). They may roll over or
8 HJTA V. CAL. SECURE CHOICE
transfer funds into their CalSavers IRA at any time. Id.
§ 10007(b). 1
The statute and regulations also describe how eligible
employers can become ineligible for CalSavers, and how
employees can make changes to their CalSavers accounts.
For example, if an eligible employer later adopts its own
“employer-sponsored retirement plan” or qualifying
“automatic enrollment payroll deduction IRA,” CalSavers
no longer applies. Cal. Gov’t Code § 100032(g)(1)–(2).
Eligible employees are also given guidance on how they may
withdraw their CalSavers contributions. See id.
§ 100014(b)(4). Any individual who is over eighteen can
also choose to participate in CalSavers “outside of an
employment relationship with an Eligible Employer.” Cal.
Code Regs. tit. 10, § 10006(a).
The Act that implemented CalSavers also created a nine-
member California Secure Choice Retirement Savings
Board, a public body “within state government,” that is
charged with managing and administering the CalSavers
Retirement Savings Trust. Cal. Gov’t Code §§ 100002,
100004. The Board is authorized to fund the Trust with the
contributions received from employers through employee
payroll deductions, invest the Trust funds (or delegate
investment to private money managers), and pay operating
costs using Trust funds. See id. § 100004.
California is phasing in CalSavers according to the size
of an employer’s workforce. Id. § 100032(b)–(d); Cal. Code
Regs. tit. 10, § 10002(a)(1)–(3). As of October 12, 2020,
California reports that 4,324 employers had registered for
1
We grant California’s request for judicial notice of background
materials on the CalSavers website.
HJTA V. CAL. SECURE CHOICE 9
CalSavers and nearly 90,000 California workers had
enrolled. Approximately 36% of eligible employees have
opted out.
Several other states and the City of Seattle have adopted
government-run auto-enrollment IRA programs like
CalSavers. See Colorado Secure Savings Program Act,
Colo. Rev. Stat. Ann. §§ 24-54.3-101, et seq.; Connecticut
Retirement Security Exchange, Conn. Gen. Stat. Ann. §§ 31-
418, et seq.; Illinois Secure Choice Savings Program Act,
820 Ill. Comp. Stat. Ann. §§ 80/1, et seq.; Maryland Small
Business Retirement Savings Program, Md. Code Ann., Lab.
& Empl. §§ 12-401, et seq.; New Jersey Secure Choice
Savings Program Act, N.J. Stat. Ann. §§ 43:23-13, et seq.;
Oregon Retirement Savings Plan, Or. Rev. Stat. Ann.
§§ 178.200, et seq.; Seattle Retirement Savings Plan, Seattle
Mun. Code §§ 14.36.010, et seq.; see also 81 Fed. Reg.
at 59464–65 (describing programs in different states); State-
Facilitated Retirement Savings Programs: A Snapshot of
Program Design Features, State Brief 20-02, Georgetown
Univ. (Aug. 31, 2020), https://cri.georgetown.edu/wp-
content/uploads/2018/12/CRI-State-Brief-20-02.pdf (last
accessed Apr. 1, 2021).
B
Howard Jarvis Taxpayers Association and two of its
employees (collectively, “HJTA”) filed this action against
the CalSavers program and the Chairman of the CalSavers
Board in his official capacity. HJTA alleged that ERISA
preempts CalSavers and that CalSavers should also be
enjoined under California Code of Civil Procedure Section
526a as a waste of taxpayer funds.
HJTA is a public interest organization that seeks to
promote taxpayer rights. But it filed this challenge in its
10 HJTA V. CAL. SECURE CHOICE
capacity as a California employer. HJTA alleged that it
meets the definition of an eligible employer and does not
operate its own employee retirement program. HJTA
therefore has standing to bring this action, and the
controversy is ripe because HJTA plausibly alleges that it
will soon be subject to CalSavers. See, e.g., Leeson v.
Transam. Disability Income Plan, 671 F.3d 969, 978–79 (9th
Cir. 2012); Inland Empire Chapter of Associated Gen.
Contractors of Am. v. Dear, 77 F.3d 296, 299 (9th Cir.
1996). The HJTA employees also have standing as future
participants in what they claim is an ERISA plan. See
29 U.S.C. § 1132(a)(3); Leeson, 671 F.3d at 978–79.
The district court granted California’s motion to dismiss,
concluding that ERISA does not preempt CalSavers. The
district court also declined to exercise supplemental
jurisdiction over HJTA’s state law claim. HJTA timely
appealed to this Court, and we review the district court’s
ruling on preemption de novo. Hickcox-Huffman v. US
Airways, Inc., 855 F.3d 1057, 1060 (9th Cir. 2017). 2
II
ERISA preempts “any and all State laws insofar as they
may now or hereafter relate to any employee benefit plan”
that ERISA covers. 29 U.S.C. § 1144(a). Is CalSavers such
a law? No court has yet addressed whether a state-
administered IRA program like CalSavers falls within
ERISA’s ambit. The issue initially seems close because
2
After supporting HJTA in the district court, the Department of
Labor (DOL) initially filed an amicus brief supporting HJTA on appeal.
Later, and after a change in presidential administrations, DOL informed
us that it no longer wished to participate as amicus and does not support
either side. Several organizations and the States of Oregon and Illinois
have filed amicus briefs supporting California.
HJTA V. CAL. SECURE CHOICE 11
ERISA’s preemption provision is expansive, and CalSavers
concerns benefits in a general sense. But closer inspection
of the governing precedents and CalSavers’ design shows
that HJTA’s broad ERISA preemption challenge to
CalSavers cannot be sustained.
A
We first address a threshold question relating to whether
Congress has already resolved this issue when it rejected a
2016 Department of Labor rule that sought to exempt
CalSavers from ERISA under a safe harbor. We hold that
Congress’s repeal of that rule does not provide an answer to
the preemption question.
DOL has issued regulations exempting certain types of
plans from ERISA. See 29 U.S.C. § 1135 (authorizing the
Secretary of Labor to “prescribe such regulations as he finds
necessary or appropriate to carry out the provisions of this
subchapter”); 29 C.F.R. §§ 2510.3-1(j), 2510.3-2(b), (d); see
generally Sgro v. Danone Waters of N. Am., Inc., 532 F.3d
940, 942 (9th Cir. 2008); Stuart v. UNUM Life Ins. Co. of
Am., 217 F.3d 1145, 1149 (9th Cir. 2000). If a plan or
program is exempt from ERISA under a safe harbor, there is
no need to determine whether ERISA preempts the law
authorizing it.
In 1975, DOL promulgated a regulation exempting
certain IRA payroll deduction programs from ERISA. See
29 C.F.R. § 2510.3-2(d). For an IRA program to qualify for
the 1975 Safe Harbor, it must meet four criteria: (i) “[n]o
contributions are made by the employer”;
(ii) “[p]articipation is completely voluntary for employees”;
(iii) the employer’s “sole involvement” is “without
endorsement to permit the sponsor to publicize the program
to employees or members, to collect contributions through
12 HJTA V. CAL. SECURE CHOICE
payroll deductions,” and “to remit them to the sponsor”; and
(iv) the employer receives “no consideration . . . other than
reasonable compensation” for the cost of completing payroll
deductions. Id. (emphasis added).
DOL has taken the position that the “completely
voluntary” requirement in the 1975 Safe Harbor “mean[s]
that the employee’s enrollment in the program must be self-
initiated,” i.e., that “the decision to enroll in the program
must be made by the employee, not the employer.” 81 Fed.
Reg. at 59465. We have also held that when benefit
coverage is “automatic for all [eligible] employees,” “it [i]s
not ‘completely voluntary’” under the 1975 Safe Harbor.
Qualls ex rel. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839,
844 (9th Cir. 1994).
In a 2016 rulemaking, DOL concluded that state-run IRA
programs like CalSavers, which require automatic
participant enrollment with “opt-out” rights, were not
“completely voluntary” and thus did not fall within the 1975
Safe Harbor. 81 Fed. Reg. at 59465. But DOL at the same
time recognized that “states have a substantial government
interest to encourage retirement savings in order to protect
the economic security of their residents.” Id. at 59464. The
question remained, however, whether ERISA would
preempt CalSavers and other like programs. DOL took no
position on that question in its 2016 rulemaking. See id.
at 59467 (“The safe harbors in this section should not be read
as implicitly indicating the Department’s views on the
possible scope of [29 U.S.C. § 1144(a)].”). But DOL
recognized that “uncertainty” over ERISA preemption “has
created a serious impediment to wider adoption of state
payroll deduction savings programs.” Id. at 59465.
To “remove [that] uncertainty” and promote state-run
IRA programs, DOL in 2016 added a new safe harbor
HJTA V. CAL. SECURE CHOICE 13
exemption, entitled “Savings Arrangements Established by
States for Non-Governmental Employees.” 81 Fed. Reg.
59464; see also 29 C.F.R. § 2510.3-2(h) (2016). The 2016
Safe Harbor was intended to ensure that state-run IRA
programs, including CalSavers, would be treated as outside
ERISA. See 81 Fed. Reg. 59466. For a program to qualify
for the 2016 Safe Harbor, employee participation need only
be “voluntary” (as opposed to “completely voluntary”), and
the state had to assume fiduciary and administrative
responsibility. Id. But the 2016 Safe Harbor was short-
lived. Less than a year after its enactment, Congress
repealed it by joint resolution under the Congressional
Review Act. Pub. L. No. 115-35, 131 Stat. 848 (2017).
HJTA thus argues that Congress “specifically disavowed
CalSavers by expressly repealing the 2016 DOL regulation
that was designed to authorize CalSavers itself.” We think,
however, that this argument reads too much into Congress’s
rejection of the 2016 Safe Harbor. As we explained above,
DOL in 2016 did not take the position that state IRA
programs were preempted under ERISA absent an
exemption. It merely sought to “remove uncertainty” about
that question, so that states could avoid the costs and delay
of ERISA preemption litigation (like this one). 81 Fed. Reg.
at 59466.
We can at most conclude from Congress’s repeal of the
2016 regulation that Congress rejected the notion that
CalSavers should be automatically exempt from an ERISA
preemption analysis. Nothing about the repeal forecasts any
answer, much less any definitive answer, on whether ERISA
preempts programs like CalSavers. That issue was left to the
courts to resolve. And that means we must address the
ERISA preemption question that the 2016 Safe Harbor might
have obviated or made easier.
14 HJTA V. CAL. SECURE CHOICE
There is one more preliminary item before we do so,
however. Assuming for a moment that CalSavers does not
fall within the 1975 Safe Harbor because it is not
“completely voluntary,” does that mean CalSavers is then
covered by ERISA and preempted? In prior cases, we have
made statements such as the following: “Unless all four of
the [1975 Safe Harbor] requirements are met, the employer’s
involvement in a group insurance plan is significant enough
to constitute an ‘employee benefit plan’ subject to ERISA.”
Qualls, 22 F.3d at 843; see also, e.g., Sarraf v. Standard Ins.
Co., 102 F.3d 991, 993 (9th Cir. 1996) (“Because [the
employee organization] is not exempted by the regulation,
its involvement in the plan is significant enough to make the
plan an ‘employee benefit plan’ subject to ERISA.”);
Pacificare Inc. v. Martin, 34 F.3d 834, 837 (9th Cir. 1994)
(“A plan failing to meet any one of these [safe harbor]
criteria cannot be excluded from ERISA coverage.”). Do
these statements mean that if a plan fails to meet the 1975
Safe Harbor, it is then an ERISA plan that ERISA preempts?
The answer is no. In Stuart v. UNUM Life Insurance Co.
of America, 217 F.3d 1145 (9th Cir. 2000), we clarified that
while “[a] program that satisfies the [safe harbor]
regulation’s standards will be deemed not to have been
‘established or maintained’ by the employer[,] [t]he
converse, however, is not necessarily true; a program that
fails to satisfy the regulation’s standards is not automatically
deemed to have been ‘established or maintained’ by the
employer, but, rather, is subject to further evaluation under
the conventional tests.” Id. at 1153 n.4 (quoting Johnson v.
Watts Regulator Co., 63 F.3d 1129, 1133 (1st Cir. 1995)).
In other words, “[t]he fact that [a] plan is not excluded from
ERISA coverage by this regulation does not compel the
conclusion that the plan is an ERISA plan.” Id. (quoting
Gaylor v. John Hancock Mut. Life Ins. Co., 112 F.3d 460,
HJTA V. CAL. SECURE CHOICE 15
463 (10th Cir. 1997)); see also Cline v. Indus. Maint. Eng’g
& Contracting Co., 200 F.3d 1223, 1230 (9th Cir. 2000)
(considering the safe harbor criteria only after determining
that the plan at issue fell “within the definition of” an ERISA
plan).
This means that even if the 1975 Safe Harbor does not
apply to CalSavers, we would still need to find that
CalSavers “otherwise qualifies as an ERISA program,”
Johnson, 63 F.3d at 1133, or “relate[s] to” ERISA, 29 U.S.C.
§ 1144(a), to conclude that ERISA preempts it. We
therefore need not decide whether the 1975 Safe Harbor
would exempt CalSavers from ERISA because we hold that
CalSavers is not an ERISA plan in the first place. Nor does
it “relate to” ERISA plans by imposing administrative
obligations on employers in California that, like HJTA, do
not offer employer-sponsored retirement plans. We now
turn to an explanation of these points.
B
ERISA’s preemption provision applies to “any and all
State laws insofar as they may now or hereafter relate to any
employee benefit plan,” as defined in ERISA. 29 U.S.C.
§ 1144(a). While the preemption provision is “clearly
expansive,” the Supreme Court has cautioned that its “relate
to” language cannot be read “to extend to the furthest stretch
of indeterminacy,” because it would then lack any limiting
principle at all. N.Y. State Conf. of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995).
States are not precluded from adopting a law just because
it has something to do with “benefits” in a loose sense, no
matter how detached the law is from ERISA’s text and
recognized objectives. To have “workable standards” and
avoid near constant preemption (“a result [that] no sensible
16 HJTA V. CAL. SECURE CHOICE
person could have intended”), the Supreme Court has
therefore rejected “‘uncritical literalism’ in applying
[ERISA’s preemption] clause.” Gobeille v. Liberty Mut. Ins.
Co., 577 U.S. 312, 319 (2016) (quotations omitted).
ERISA applies to “plans, rather than simply to benefits.”
Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987).
That demarcation forms the basis for the Supreme Court’s
cases distinguishing state laws that fall within ERISA’s
preemptive reach from those that are beyond it. To this end,
the Court has identified “two categories of state laws that
ERISA pre-empts.” Id. “First, ERISA pre-empts a state law
if it has a ‘reference to’ ERISA plans.” Id. (citing Travelers,
514 U.S. at 656). “Second, ERISA pre-empts a state law that
has an impermissible ‘connection with’ ERISA plans,
meaning a state law that ‘governs . . . a central matter of plan
administration’ or ‘interferes with nationally uniform plan
administration.’” Id. (quoting Egelhoff v. Egelhoff, 532 U.S.
141, 148 (2001)). HJTA has not shown that either test is
satisfied.
1
If CalSavers “creates an ERISA plan,” then it “almost
certainly makes an impermissible ‘reference to’ an ERISA
plan.” Golden Gate Rest. Ass’n v. City & Cty. of San
Francisco, 546 F.3d 639, 648 (9th Cir. 2008). But CalSavers
does not order anyone to create an ERISA “employee benefit
plan,” as ERISA defines that term and as precedent
elucidates that concept.
ERISA’s preemption provision precludes state laws that
“relate to any employee benefit plan.” 29 U.S.C. § 1144(a).
An “employee benefit plan” means either an “employee
welfare benefit plan” or an “employee pension benefit plan.”
Id. § 1002(3). “Employee pension benefit plan” is the type
HJTA V. CAL. SECURE CHOICE 17
of plan potentially relevant to CalSavers. ERISA defines
such a plan as “any plan, fund, or program which was
heretofore or is hereafter established or maintained by an
employer or by an employee organization, or by both, to the
extent that by its express terms or as a result of surrounding
circumstances[,] such plan, fund, or program” provides
retirement income or results in deferral income by
employees. Id. § 1002(2)(A) (emphasis added).
HJTA contends that CalSavers is an ERISA plan because
it satisfies the four-factor test in Donovan v. Dillingham, 688
F.2d 1367 (11th Cir. 1982). Under the Donovan test, an
ERISA plan is established “if from the surrounding
circumstances a reasonable person can ascertain [1] the
intended benefits, [2] a class of beneficiaries, [3] the source
of financing, and [4] procedures for receiving benefits.” Id.
at 1373.
We have used the Donovan factors as a benchmark for
assessing whether a de facto plan is an ERISA plan. See,
e.g., Winterrowd v. Am. Gen. Annuity Ins. Co., 321 F.3d 933,
939 (9th Cir. 2003); Modzelewski v. Resolution Tr. Corp.,
14 F.3d 1374, 1376 (9th Cir. 1994); but see Golden Gate,
546 F.3d at 652 (questioning whether the Donovan factors
are compatible with later Supreme Court precedent on
whether an informal policy is an ERISA plan). But we have
never suggested that the Donovan factors are the “be all and
end all” for whether an arrangement is an ERISA plan. That
is because the Donovan factors presume the existence of a
threshold requirement for ERISA plans: that they be
“established or maintained by an employer.”
As we explained in Golden Gate, “satisfying the
Donovan criteria was a necessary but not sufficient condition
for the creation of an ERISA plan.” 546 F.3d at 652.
Donovan is concerned with ascertaining whether a de facto
18 HJTA V. CAL. SECURE CHOICE
plan is an ERISA plan, once an employer decides to provide
ERISA-type benefits to its employees. See id. (noting that
Donovan and its progeny “all involve some type of unwritten
or informal promise made by an employer to its
employees”). But Donovan itself made clear that its criteria
only come into play when “an employer or employee
organization is the person that establishes or maintains the
plan, fund, or program.” 688 F.2d at 1371 (emphasis added).
The issue here is thus not whether, had an employer set
up an IRA program on its own, that program would be
subject to ERISA. That assumes away the central question
in this appeal, which is whether a state-run IRA program like
CalSavers is “established or maintained by an employer.”
The answer to that question is “no.”
2
The ERISA-required “employer” that supposedly
“established or maintained” CalSavers could only be one of
two entities. The first, of course, is the State. But it seems
quite clear that although California “established or
maintained” CalSavers, it did not do so in the capacity of an
“employer.” The “established or maintained” requirement,
we have explained, “appears designed to ensure that the plan
is part of an employment relationship.” Charles Schwab &
Co. v. Debickero, 593 F.3d 916, 921 (9th Cir. 2010) (quoting
Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1049
(10th Cir. 1992)). And ERISA defines “employer” as “any
person acting directly as an employer, or indirectly in the
interest of an employer, in relation to an employee benefit
plan.” 29 U.S.C. § 1002(5). California does not employ
CalSavers participants, who are by definition not
governmental employees. Cal. Gov’t Code § 100000(c)(1),
(d). California is thus not “acting directly as an employer”
through CalSavers or the CalSavers Trust.
HJTA V. CAL. SECURE CHOICE 19
Nor is California acting “indirectly in the interest of an
employer” through CalSavers. 29 U.S.C. § 1002(5).
CalSavers does not purport to provide ready access to IRAs
on behalf of California employers. See Bleiler v. Cristwood
Constr., Inc., 72 F.3d 13, 15 (2d Cir. 1995) (explaining that
“indirectly” requires “some type of agency or ownership
relationship or an assumption of the employer’s functions
with regard to the administration of an ERISA plan”);
Greenblatt v. Delta Plumbing & Heating Corp., 68 F.3d 561,
575 (2d Cir. 1995) (“It is clear that the ‘in the interest of’
language encompasses those who act for an employer or
directly assume the employer’s duty to make plan
contributions.”). Nor, by its design, does CalSavers
represent employers in any relevant sense. CalSavers
instead steps in where the State regards eligible California
employers as having failed to provide their workers with
desirable retirement savings options.
We have previously held that “a trust was not an ERISA
plan because it recruited ‘heterogeneous, unrelated
employers.’” Moideen v. Gillespie, 55 F.3d 1478, 1481 (9th
Cir. 1995) (quoting Credit Managers Ass’n of S. Cal. v.
Kennesaw Life & Acc. Ins. Co., 809 F.2d 617, 625 (9th Cir.
1987)). The employers who are subject to CalSavers are
heterogeneous and unrelated, and California has not
“recruited” them at all. Indeed, employers have no say over
how CalSavers is operated; they did not create it, nor do they
control it. 3
3
HJTA’s reliance on Kanne v. Connecticut Gen. Life Ins. Co.,
867 F.2d 489 (9th Cir. 1988) (per curiam), is therefore unavailing. In
Kanne, construction employers created an association to administer a
health plan for their employees. Id. at 491. We held that the association
qualified as an ERISA “employer,” which “includes a group or
20 HJTA V. CAL. SECURE CHOICE
If California is not the ERISA “employer,” the only other
entities who could fit that bill are those eligible employers
who are subject to CalSavers. These entities are, of course,
“employers.” HJTA argues that CalSavers effectively
requires these employers to “establish or maintain” ERISA
plans by conscripting them into participating in CalSavers
and imposing certain obligations on them. But this argument
is faithful neither to CalSavers’ operation nor ERISA.
There is scant case law on when an employer’s required
participation in a government-mandated, government-run
benefits program nonetheless leads to the employer
“establishing or maintaining” an ERISA plan. But the
“establishment” of an ERISA plan requires both a “decision
to extend benefits” and some “[a]cts or events that record,
exemplify or implement the decision,” such as “financing or
arranging to finance or fund the intended benefits” or
“establishing a procedure for disbursing benefits.”
Donovan, 688 F.2d at 1373; see also, e.g., Cinelli v. Sec.
Pac. Corp., 61 F.3d 1437, 1442 (9th Cir. 1995). Addressing
another provision of ERISA that involves “maintain[ing]” a
plan, courts have relied on dictionary definitions to explain
that “maintain” means to “care[] for the plan for purposes of
operational productivity.” Medina v. Catholic Health
Initiatives, 877 F.3d 1213, 1226 (10th Cir. 2017); see also
Sanzone v. Mercy Health, 954 F.3d 1031, 1041–42 (8th Cir.
2020) (similar).
The closest precedent we have to the present case is
Golden Gate Restaurant Association v. City & County of San
association of employers acting for an employer in such capacity.” Id.
at 493 (quoting 29 U.S.C. § 1002(5)) (emphasis removed). CalSavers is
not “acting for” eligible employers, nor is it a “group or association of
employers.”
HJTA V. CAL. SECURE CHOICE 21
Francisco, 546 F.3d 639 (9th Cir. 2008). Golden Gate
involved a city ordinance that created a city-run “Health
Access Plan” (HAP) for low-income residents to obtain
health coverage. Id. at 642–43. Under the HAP, employers
were required to spend a certain amount on healthcare each
quarter, either by making payments into their own employee
health plans or by making a payment directly to the city (the
“City-payment option”). Id. at 643–46. Eligible employees
could then enroll in the HAP and would be eligible for city-
managed medical reimbursement accounts. Id. at 645.
We held that the City-payment option did not create an
ERISA plan. Id. at 648–52. While employers were required
to comply with certain “administrative obligations” under
the HAP—such as tracking employee hours, maintaining
certain records, and the like—“[t]his burden [wa]s not
enough, in itself, to make the payment obligation an ERISA
plan.” Id. at 650. We explained that in the context of a
government-sponsored benefit in which an employer has
mandatory back-end responsibilities, “an employer’s
administrative duties must involve the application of more
than a modicum of discretion in order for those
administrative duties to amount to an ERISA plan.” Id.
Because the employer could “make no promises to its
employees with regard to the HAP or its coverage” and the
city was not “act[ing] as the employer’s agent entrusted to
fulfill the benefits promises the employer made to its
employees,” we concluded in Golden Gate that the “the City,
rather than the employer, establishes and maintains the
HAP.” Id. at 654. Consistent with case law interpreting
“establish” and “maintain,” Golden Gate stands for the
proposition that an employer’s non-discretionary
administrative obligations under a government-mandated
benefit program do not, without more, “run the risk of
22 HJTA V. CAL. SECURE CHOICE
mismanagement of funds or other abuse” by employers,
which is ERISA’s focus. Id. at 651.
Golden Gate’s holding was informed by ERISA’s basic
objectives, which serve as a “guide to the scope of the state
law that Congress understood would survive” ERISA’s
preemption provision. Gobeille, 577 U.S. at 320 (quoting
Cal. Div. of Lab. Standards Enf’t v. Dillingham Constr.,
N.A., Inc., 519 U.S. 316, 325 (1997)). ERISA “seeks to
make the benefits promised by an employer more secure by
mandating certain oversight systems and other standard
procedures.” Id. at 320–21; see also Fort Halifax, 482 U.S.
at 16 (“Only ‘plans’ involve administrative activity
potentially subject to employer abuse.”). When employers
merely perform mandatory administrative functions in a
government benefits scheme that do not require the
employer to exercise “more than a modicum of discretion,”
Golden Gate, 546 F.3d at 650, the employer does not
“establish or maintain” an ERISA “plan” because the
employer is not engaging in the type of conduct that ERISA
seeks to regulate.
Applying these principles, we conclude that in every
relevant sense, it is the State that has established CalSavers
and the State that maintains it—and not eligible employers.
California created CalSavers. California determines the
eligibility for both employers and employees. Cal. Code
Regs. tit. 10, § 10000(l)–(n). California enrolls eligible
employees. Id. § 10004. Individuals can elect to participate
in CalSavers outside of the employment relationship by
enrolling and making contributions via electronic funds
transfer or personal check. See Cal. Code Regs. tit. 10,
§ 10006. California acts as the sole fiduciary over the trust
and program, with the Board making all investment
decisions (or delegating investment strategy to private
HJTA V. CAL. SECURE CHOICE 23
managers). Cal. Gov’t Code §§ 100002(d)–(e), 100004,
100034. And California is “free to change the kind and level
of benefits as it sees fit.” Golden Gate, 546 F.3d at 654. All
of this confirms that “the [State], rather than the employer,
establishes and maintains” CalSavers. Id.
That CalSavers imposes certain administrative duties on
eligible employers does not mean that eligible employers
complying with those obligations “establish or maintain”
ERISA plans. The role for eligible employers is limited to
registering for the program; evaluating employee eligibility
according to non-discretionary criteria; providing the State
with employee identification and contact information; and
processing specified payroll deductions according to set
formulae. Cal. Code Regs. tit. 10, §§ 10002, 10003(a)–(c).
The types of determinations employers must make under
CalSavers are essentially mechanical, such as which of their
employees are eighteen or older, how many people they
employ, and so on. See id. §§ 10000(l)–(m), 10001, 10002.
It is of course true that if the State mandated that private
employers provide certain retirement benefits to their
employees, this would violate ERISA. See Fort Halifax,
482 U.S. at 16 (agreeing that requiring employers to create
benefit plans “would permit States to circumvent ERISA’s
pre-emption provision, by allowing them to require directly
what they are forbidden to regulate”). The considerations
would also likely be different if employers were making
discretionary judgments within a state-mandated benefits
scheme.
But California has not done anything like this in
CalSavers. HJTA cites no authority suggesting that the non-
discretionary administrative involvement that CalSavers
requires of employers is enough to mean the employers have
thereby “established or maintained” ERISA plans. As we
24 HJTA V. CAL. SECURE CHOICE
explained in Golden Gate, “[m]any federal, state and local
laws, such as income tax withholding, social security, and
minimum wage laws, impose similar administrative
obligations on employers; yet none of these obligations
constitutes an ERISA plan.” 546 F.3d at 650.
In suggesting that employers have a more substantive
role in CalSavers, HJTA misstates the statutory scheme.
HJTA claims, for example, that under CalSavers “the
employer is managing the employee’s money.” But it is the
CalSavers Board that does this. Cal. Gov’t Code
§§ 100002(d)–(f), 100010. And employers are prohibited
from “[e]xercis[ing] any authority, control, or responsibility
regarding the Program,” except for specifically identified
administrative duties. Cal. Code Regs. tit. 10,
§ 10003(d)(4).
HJTA also asserts that under CalSavers, employers are
“obligated” to provide their employees with “guidance and
opinions” and are “mandated to endorse CalSavers.” But
again, CalSavers in fact disallows this. Under CalSavers,
eligible employers “shall not” “[r]equire, endorse,
encourage, prohibit, restrict, or discourage employee
participation in the Program.” Id. § 10003(d)(1). Nor may
they “[p]rovide Participating Employees . . . advice or
direction regarding investment choices, Contribution Rates,
participation in Automatic Escalation, or any other decision
about the Program.” Id. § 10003(d)(2). The CalSavers
scheme does not give employers the expansive, discretionary
role that HJTA suggests. Cf. Simas v. Quaker Fabric Corp.
of Fall River, 6 F.3d 849, 853 (1st Cir. 1993) (holding that
ERISA preempted state law that required employers to make
eligibility determinations “likely to provoke controversy and
call for judgments based on information well beyond the
employee’s date of hiring and termination”). While some
HJTA V. CAL. SECURE CHOICE 25
employers may find CalSavers irritating or even
burdensome, that does not make their involvement in
CalSavers tantamount to establishing or maintaining an
ERISA plan. See Golden Gate, 546 F.3d at 650. 4
Finally, HJTA errs in claiming that CalSavers forces
employers to create ERISA plans because it is the
employer’s initial decision not to offer a tax-qualified
retirement savings program that then requires it to comply
with CalSavers. While HJTA’s lack of a retirement plan
made it subject to CalSavers, it does not follow that HJTA
thereby “established or maintained” an ERISA plan. That a
regulated entity is complying with a mandatory state scheme
does not mean the entity “establishes or maintains” the
program established by that scheme. In no sense does an
eligible employer “establish or maintain” an ERISA plan
through its decision not to establish such a plan, which is
what triggers CalSavers’ application.
3
Having concluded CalSavers is not an ERISA plan and
does not require employers to establish or maintain one, we
now turn to whether CalSavers otherwise “relates to” ERISA
benefit plans because it has a forbidden “reference to” or
4
HJTA argues that small employers subject to CalSavers may
inadvertently establish ERISA plans if they drop below five employees.
This argument is not persuasive. There is no basis for HJTA’s claim that
it will be “tricky” for employers to know whether they have fewer than
five employees. See Cal. Code Regs. tit. 10, § 10001(a) (method of
calculating number of employees). And if an employer’s average
number of employees falls below five for a calendar year, that does not
mean its compliance with CalSavers then produces an ERISA plan; it
merely means the employer is no longer subject to CalSavers. See id.
§ 10001(b).
26 HJTA V. CAL. SECURE CHOICE
“connection with” such plans. Rutledge v. Pharm. Care
Mgmt. Ass’n, 141 S. Ct. 474, 479 (2020). We hold that
HJTA’s preemption challenge fails under these tests.
A state law impermissibly “refers to” ERISA “if it ‘acts
immediately and exclusively upon ERISA plans or where the
existence of ERISA plans is essential to the law’s
operation.’” Id. at 481 (quoting Gobeille, 577 U.S. at 319–
20). A state law has an impermissible “connection with”
ERISA if it “governs a central matter of plan administration
or interferes with nationally uniform plan administration,”
such as “by requiring payment of specific benefits or by
binding plan administrators to specific rules for determining
beneficiary status.” Id. at 480 (quoting Gobeille, 577 U.S.
at 320) (citations omitted).
HJTA has not shown that CalSavers runs afoul of ERISA
in these ways. CalSavers specifically exempts those
employers that “provide[] an employer-sponsored retirement
plan” or “an automatic enrollment payroll deduction IRA” if
“the plan or IRA qualifies for favorable federal income tax
treatment under the federal Internal Revenue Code.” Cal.
Gov’t Code § 100032(g)(1); see also Cal. Code Regs. tit. 10,
§ 10000(q) (including in the definition of “Exempt
Employer” any employer that “maintains or contributes to a
Tax-Qualified Retirement Plan”); id. § 10000(z) (defining
“Tax-Qualified Retirement Plan”). HJTA thus forthrightly
acknowledges that employers who provide their employees
with ERISA-governed retirement plans are not subject to
CalSavers.
What this means is that CalSavers does not “act on
ERISA plans at all, let alone immediately and exclusively.”
Golden Gate, 546 F.3d at 657. CalSavers does not regulate
ERISA plans or the benefits provided under them.
Employers that offer such plans are not “force[d] . . . to
HJTA V. CAL. SECURE CHOICE 27
provide any particular employee benefits or plans, to alter
their existing plans, or to even provide ERISA plans or
employee benefits at all.” WSB Elec., Inc. v. Curry, 88 F.3d
788, 793 (9th Cir. 1996); see also Golden Gate, 546 F.3d
at 655 (holding that the HAP was not “in connection with”
ERISA because it did not “require any employer to provide
specific benefits through an existing ERISA plan or other
health plan”). If an employer has an existing ERISA plan or
later chooses to adopt one, CalSavers has nothing to say
about those plans or their administration. Nothing in law
supports HJTA’s effort to recast ERISA’s preemption
provision as a sword that would allow employers who do not
offer their own retirement plans to thereby deprive their
employees of the ability to participate in a state-run IRA
savings program. 5
HJTA maintains that CalSavers nonetheless “competes
with” ERISA plans and will “frustrate, not encourage the
formation of” ERISA plans. Even if this were true, it does
5
In its since-withdrawn amicus brief, the DOL agreed that
employers with “ERISA-covered retirement plans are exempt from
CalSavers.” But it asserted in a footnote that employers that offer a non-
automatic IRA retirement program may be covered by ERISA but “may
also” be subject to CalSavers, because CalSavers provides that “[a]n
employer-provided payroll deduction IRA program that does not provide
for automatic enrollment” is not exempt from CalSavers. We have no
occasion to consider this issue because HJTA does not offer its
employees any ERISA-governed plan at all. We express no opinion on
whether ERISA would preempt CalSavers insofar as it applies to
employers with existing ERISA plans, assuming such a circumstance
exists. We also reject as speculative HJTA’s claim that California has
set itself up as an “alternative adjudicator of ERISA compliance” in
assessing employer exemption from CalSavers. We do not have before
us a dispute between an employer and the State over whether an
employer is exempt from CalSavers. We therefore do not opine on the
preemption implications, if any, that such a situation could present.
28 HJTA V. CAL. SECURE CHOICE
not matter. The Supreme Court has been clear that “ERISA
does not pre-empt” state laws that “merely increase costs or
alter incentives for ERISA plans without forcing plans to
adopt any particular scheme of substantive coverage.”
Rutledge, 141 S. Ct. at 480 (citing Travelers, 514 U.S.
at 668). It may be that CalSavers will incentivize employers
to cancel their existing ERISA plans, lead them to create
ERISA plans to compete with CalSavers, or otherwise
influence the benefits employers offer. But these forms of
“‘indirect economic influence’ d[o] not create an
impermissible connection between” CalSavers and ERISA
because CalSavers “d[oes] not ‘bind plan administrators to
any particular choice.’” Id. (quoting Travelers, 514 U.S.
at 659).
This leaves HJTA arguing that ERISA preempts
CalSavers because it is “ERISA-regarding,” in that
California law keys eligibility for CalSavers on whether an
employer offers an ERISA plan. But that argument relies on
the very “uncritical literalism” that the Supreme Court has
rejected in interpreting ERISA’s preemption provision.
Gobeille, 577 U.S. at 319.
As we have previously explained, and as remains true
today, “[t]he Supreme Court . . . has never found a statute to
be preempted simply because its text included the word
ERISA or explicitly mentioned” ERISA plans. WSB Elec.,
Inc., 88 F.3d at 793; see also Hattem v. Schwarzenegger,
449 F.3d 423, 432 (2d Cir. 2006); NYS Health Maint. Org.
Conf. v. Curiale, 64 F.3d 794, 800 (2d Cir. 1995). Although
the Supreme Court has held that ERISA preempted state
statutes when they “expressly refer[red] to ERISA plans,”
these state laws “also had some effect on those plans.” WSB
Elec., Inc., 88 F.3d at 793. Because CalSavers does not act
on ERISA plans or ERISA benefits, we do not see how
HJTA V. CAL. SECURE CHOICE 29
CalSavers’ explicit effort to wall off ERISA plans from its
ambit could somehow turn out to be the very feature that
leads to preemption. Nothing in principle or precedent
supports such a strange result.
Mackey v. Lanier Collection Agency & Service, Inc.,
486 U.S. 825 (1988), on which HJTA relies, is not to the
contrary. In Mackey, the Supreme Court held that ERISA
preempted a Georgia law that specifically exempted ERISA
benefits from state garnishment procedures. Id. at 828–29.
But the law in Mackey did more than just expressly refer to
ERISA plans: it “solely applie[d]” to ERISA plans and
“single[d] out ERISA employee welfare benefit plans for
different treatment.” Id. at 829–30. That is, by exempting
ERISA benefits from what was a generally applicable
garnishment scheme that could otherwise apply to ERISA
benefits, see id. at 830, the Georgia exception “act[ed]
immediately and exclusively upon ERISA plans,”
Dillingham, 519 U.S. at 325 (describing the state law in
Mackey in these terms).
The effective ERISA reference in the CalSavers
exemption, by contrast, confers no such “special treatment”
on ERISA benefits because it does not operate on those
benefits at all. Mackey, 486 U.S. at 838 n.12. Unlike the
Georgia garnishment exception in Mackey, CalSavers was
not “specifically designed to affect employee benefit plans.”
Id. at 829 (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 47–48 (1987)).
CalSavers is instead more akin to the exemption at issue
in Washington Physicians Service Ass’n v. Gregoire,
147 F.3d 1039 (9th Cir. 1998), as amended on denial of
reh’g and reh’g en banc (Aug. 24, 1998). In Gregoire, a
statute that regulated “health plan[s]” excluded employer-
sponsored plans from its ambit. Id. at 1043. We rejected a
30 HJTA V. CAL. SECURE CHOICE
preemption challenge similar to the one HJTA raises here
because the law did not “operate directly” on ERISA plans.
Id. at 1044. “In plain English,” we explained, if the
employer were to operate its own ERISA health benefit plan,
“the Act would not apply at all, and [the employer] could
structure its benefits in any way it chose.” Id. at 1043. The
same reasoning follows for CalSavers: if an employer offers
its own retirement plan, CalSavers does not apply. And
CalSavers does not otherwise address how the employer may
structure its retirement benefits.
HJTA’s reliance on District of Columbia v. Greater
Washington Board of Trade, 506 U.S. 125 (1992), is also
misplaced. In Greater Washington, the Supreme Court held
that ERISA preempted a District of Columbia law that
required employers who provided health insurance to their
employees under an ERISA welfare benefit plan to provide
“equivalent” coverage for injured employees eligible for
workers’ compensation, who were subject to plans exempted
from ERISA. Id. at 126–28. In effect, the D.C. law required
employers to extend their ERISA-governed health plans to
another class of claimants. See Curiale, 64 F.3d at 800.
Because the D.C. law in Greater Washington applied
only to employers with ERISA-governed plans, 506 U.S.
at 130, “the existence of ERISA plans [wa]s essential to the
law’s operation,” Dillingham, 519 U.S. at 325 (describing
Greater Washington). That is not the case here because
CalSavers operates where employers do not offer ERISA
retirement plans. Unlike the D.C. law in Greater
Washington, CalSavers “does not tell employers how to
write their ERISA plans.” WSB Elec., Inc., 88 F.3d at 793–
94 (quoting Employee Staffing Servs., Inc. v. Aubry, 20 F.3d
1038, 1041 (9th Cir. 1994)). Moreover, while the D.C. law
“impose[d] requirements by reference” to ERISA-covered
HJTA V. CAL. SECURE CHOICE 31
plans, Greater Washington, 506 U.S. at 130–31, CalSavers
ensures that employers with ERISA plans are not subject to
additional requirements. In fact, employers who already
offer qualifying plans do not even have to notify California
of their exemption from CalSavers. Cal. Code Regs. tit. 10,
§ 10001(d).
Our decision in WSB Electric is instructive here. In that
case, California passed a prevailing wage law, which
required public works contractors to pay a minimum wage
to their employees. Id. at 790. To comply, the contractor
had to either pay the entire prevailing wage in cash or pay a
base cash wage and receive credit for certain benefit
contributions. Id. The law expressly referred to ERISA
plans in determining how much credit the employer could
receive for the benefit contributions. Id. at 793. But we
rejected the argument that a reference to ERISA plans,
standing alone, meant that the California wage law was
preempted, because “[t]he references to ERISA plans in the
California prevailing wage law have no effect on any ERISA
plans.” Id. HJTA’s preemption challenge similarly
identifies no effect on existing ERISA plans.
Finally, HJTA argues that multi-state employers will be
forced to comply with “differing pension plan requirements
in different states,” contrary to ERISA’s purpose of ensuring
uniform rules for plan administration. But HJTA once again
misstates what CalSavers requires. Employers’ own
retirement plans remain subject to one uniform law: ERISA.
The ministerial obligations CalSavers imposes on eligible
employers do not resemble the establishment or maintenance
of an ERISA plan. And while HJTA protests that every state
may now enact its own version of CalSavers, subjecting
multi-state employers to many sets of laws, that
circumstance is merely a function of our federal system, little
32 HJTA V. CAL. SECURE CHOICE
different than the varying state laws in other areas to which
employers are already subject.
There is, to be sure, an important policy debate here.
California steadfastly maintains that CalSavers is needed to
address a serious shortfall in retirement savings that, if not
addressed, will impose significant costs on the State years
down the line. HJTA seemingly believes that state-run IRA
programs reflect too great a role for government in private
decision-making, while imposing too many costs on
employers. But these are issues for California’s lawmakers
and those who elect them, or for Congress should it choose
to take up this issue. The question for us is whether Congress
has already outlawed CalSavers. For the reasons we have
explained, HJTA’s ERISA preemption challenge fails.
* * *
The judgment of the district court is therefore
AFFIRMED.