Voluntary and supplemental benefits have traditionally received less ERISA scrutiny than core health and retirement plans. That landscape is beginning to shift.
Recent ERISA litigation has started to focus on voluntary benefits, particularly in situations where plan structure, employer involvement, and broker compensation raise questions about fiduciary responsibility. A recent Holland & Knight analysis highlights how plaintiffs are using disclosed plan and compensation data to evaluate whether safe harbor requirements are being met and whether compensation arrangements are reasonable.
This trend has implications for employers and creates a new planning opportunity for brokers who understand where these plans sit relative to the broader market.
The current wave of cases is not driven by technical violations. Instead, it focuses on patterns that are visible through existing disclosures and plan documentation, including:
Employer involvement that may suggest endorsement
Voluntary benefits that do not clearly meet all safe harbor criteria
Premiums and broker compensation that appear elevated when compared to similar employers
In many cases, the underlying issue is not intent, but lack of benchmarking. Without market context, employers have limited visibility into whether their plans stand out in meaningful ways.
Most employers are not equipped to answer questions such as:
How do our supplemental benefit premiums compare to similar organizations?
Are broker compensation rates consistent with the market?
Do our voluntary benefits look typical when viewed alongside peer employers?
As ERISA scrutiny increasingly relies on comparative analysis, these unanswered questions create unnecessary exposure.
Brokers are often the only party positioned to provide this context.
Those with access to market-level data can identify plans that warrant closer review and help employers understand how their benefits compare across industry, size, and geography. This shifts broker conversations away from reactive explanations and toward proactive review and planning.
With group benefits intelligence, brokers can quickly surface patterns that would otherwise remain hidden, including:
Employers offering specific supplemental benefits such as accident, critical illness, or hospital indemnity
Peer group comparisons based on size, industry, and location
Broker compensation rates that are materially higher than peer averages
Brokers can use group benefits intelligence to identify employers who may benefit from a plan review. Start by searching for employers offering specific supplemental benefits—such as accident, critical illness, or hospital indemnity coverage. Then apply filters to surface plans where broker compensation rates exceed market averages for similar organizations.
This approach helps brokers identify opportunities to provide value by offering comparative analysis and ensuring employers understand how their plans and compensation arrangements compare to the broader market.
These indicators do not imply wrongdoing. They point to plans that may benefit from benchmarking, restructuring, or additional explanation.
Notably, this same comparative approach is already being used by plaintiffs' firms. Brokers can apply it earlier and for a different purpose.
Employers increasingly expect their advisors to understand how their benefits programs compare to the market. As ERISA attention expands beyond traditional plan types, that expectation will continue to rise.
Access to accurate, well-attributed market data allows brokers to meet that expectation with confidence.
Benefeature is a group benefits intelligence platform designed to answer real market questions with reliable data. By bringing together plan details, broker attribution, and compensation insights, Benefeature helps brokers and carriers understand where plans stand and where attention may be needed.
As voluntary benefits receive greater scrutiny, clear market visibility becomes essential.
Closing thought: Voluntary benefits are no longer invisible. Brokers who can see the market clearly will be the ones best positioned to guide employers forward.
Source: Holland & Knight, Understanding the New Wave of ERISA Litigation (January 2026)
See how Benefeature helps brokers use market data to identify voluntary benefit plans that may benefit from benchmarking, restructuring, or additional explanation.
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