When enacting ERISA, Congress included a comprehensive enforcement regime "to preclude abuse and to completely secure the rights and expectations brought into being by this landmark reform litigation." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137 (1990) (citation omitted). One important component of this enforcement scheme is ERISA's anti-retaliation provision, which is set forth in Section 510 of the statute. In relevant part, Section 510 provides that it is unlawful "to discharge, fine, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to" ERISA. 29 U.S.C. § 1140. Although Section 510 is clearly understood to apply to an employee who testifies in court or gives information to a regulatory agency, such as the Department of Labor, it is less clear whether and how Section 510 applies to internal workplace complaints. Even though the federal courts of appeals have been sharply divided on this issue, the United States Supreme Court recently declined an invitation to resolve the conflict. Edwards v. A.H. Cornell & Son, Inc., 131 S. Ct. 1604 (2011). As a result, we can expect that the issue will remain a point of contention among the lower courts. Given the unresolved circuit split regarding the proper interpretation of ERISA's anti-retaliation provision, we take this opportunity to review the case law that has provoked the conflict.
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