,,ii #aafth ,,congress #ast ,session ,s4 #aibg ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,june #bj1 #bjai,mr4 ,kennedy introduced the following bill2 which was read twice and referred to the ,committee on ,health1 ,education1 ,labor1 and ,pensions ,a ,,bill ,to amend the ,employee ,retirement ,income ,security ,act of #aigd with respect to association retirement plans and other multiple employer pension benefit plans4 #a4 ,short title ,this ,act may be cited as the ,expanding ,access to ,retirement ,act of #bjai4 #b4 ,definition of employer for purposes of association retirement plans and other multiple employer pension benefit plans 7a7 ,definition of employer ,section #c7e7 of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #ajjb7e77 is amended by striking the period and inserting 7which1 with respect to a defined contribution pension plan1 includes only a bona fide group or association of employers or a bona fide professional employer organization1 as defined in paragraphs 7#dc7 and 7#dd71 respectively744 7b7 ,bona fide group or association of employers ,section #c of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #ajjb7 is amended by adding at the end the following3 7#dc7 7,a7 ,the term bona fide group or association of employers means a group or association of employers that meets all of the following requirements3 7i7 ,the primary purpose of the group or association may be to offer and provide multiple employer pension plan coverage to employer members and their employees1 provided that the group or association has at least one substantial business purpose unrelated to offering and providing multiple employer pension plan coverage or other employee benefits4 7ii7 ,each employer member of the group or association participating in the plan is a person acting directly as an employer of at least one employee who is a participant covered under the plan4 7iii7 ,the group or association has a formal organizational structure with a governing body and has by-laws or other similar indications of formality4 7iv7 ,the functions and activities of the group or association are controlled1 in form and in substance1 by its employer members and the group's or association's employer members that participate in the pension plan4 7v7 ,the employer members have a commonality of interest as described in subparagraph 7,c74 7vi7 ,the group or association does not make plan participation through the association available other than to employees and former employees of employer members1 and their beneficiaries4 7vii7 ,the group or association is not a bank or trust company1 insurance issuer1 broker-dealer1 or other similar financial services firm 7including pension record keepers and third-party administrators71 or owned or controlled by such an entity or any subsidiary or affiliate of such an entity1 other than to the extent such an entity1 subsidiary1 or affiliate participates in the group or association in its capacity as an employer member of the group or association4 7,b7 ,for purposes of subparagraph 7,a77i7-- 7i7 a substantial business purpose is considered to exist if the group or association would be a viable entity in the absence of sponsoring an employee benefit plan2 and 7ii7 a business purpose includes promoting common business interests of the group's or association's members or the common economic interests in a given trade or employer community and is not required to be a for-profit activity4 7,c7 7i7 ,for purposes of subparagraph 7,a77#e7-- 7,i7 ,employer members of a group or association shall be considered to have a commonality of interest if-- 7aa7 the employers are in the same trade1 industry1 line of business1 or profession2 or 7bb7 each employer has a principal place of business in the same region that does not exceed the boundaries of a single ,state or a metropolitan area 7even if the metropolitan area includes more than one ,state74 7ii7 ,in the case of a group or association that is sponsoring a multiple employer plan and that is an employer member of the group or association1 the group or association will be deemed for purposes of paragraph 7b77#b77;i77,a7 to be in the same trade1 industry1 line of business1 or profession1 as applicable1 as the other employer members of the group or association4 7,d7 7i7 ,for purposes of subparagraph 7,a71 a working owner of a trade or business without common law employees may qualify as both an employer and as an employee of the trade or business4 7ii7 ,for purposes of clause 7i71 the term working owner means any person who a responsible plan fiduciary reasonably determines is an individual-- 7,i7 who has an ownership right of any nature in a trade or business1 whether incorporated or unincorporated1 including a partner or other self-employed individual2 7,,ii7 who is earning wages or self-employment income from the trade or business for providing personal services to the trade or business2 and 7,,iii7 who-- 7aa7 works on average at least #bj hours per week or at least #hj hours per month providing personal services to the working owner's trade or business2 or 7bb7 has wages or self-employment income from such trade or business that at least equals the working owner's cost of coverage for participation by the working owner and any covered beneficiaries in any group health plan sponsored by the group or association in which the individual is participating or is eligible to participate4 7iii7 ,the determination of whether an individual qualifies as a working owner shall be made when the individual first becomes eligible for participation in the defined contribution multiple employer pension plan and continued eligibility pursuant to this subparagraph shall be periodically confirmed pursuant to reasonable monitoring procedures4 4 7c7 ,bona fide professional employer organization ,section #c of the ,employee ,retirement ,income ,security ,act of #aigd 7#bi ,u4,s4,c4 #ajjb71 as amended by subsection 7b71 is further amended by adding at the end the following3 7#dd7 7,a7 ,the term bona fide professional employer organization means a human resource company that contractually assumes certain employer responsibilities of employers who are clients of the organization 7referred to in this paragraph as client employers7 and that meets all of the following requirements3 7i7 ,the organization performs substantial employment functions1 as described in subparagraph 7,b71 on behalf of client employers1 and maintains adequate records relating to such functions4 7ii7 ,the organization has substantial control over the functions and activities of the multiple employer plan1 as the plan sponsor 7within the meaning of section #c7af77;,b771 the plan administrator 7within the meaning of section #c7af77;,a771 and a named fiduciary 7within the meaning of section #djb74 7iii7 ,the organization ensures that each client employer that adopts the multiple employer pension plan acts directly as an employer of at least one employee who is a participant covered under the defined contribution multiple employer plan4 7iv7 ,the organization ensures that participation in the multiple employer pension plan is available only to employees and former employees of the organization and client employers1 and their beneficiaries4 7v7 ,the organization establishes a multiple employer pension plan4 7,b7 7i7 ,the ,secretary shall determine whether an organization is considered to perform substantial employment functions on behalf of client employers1 within the meaning of subparagraph 7,a77i71 based on the criteria under clause 7ii74 7ii7 ,an organization performs substantial employment functions if either of the following applies3 7,i7 ,the organization is a certified professional employer organization 7as defined in section #ggje7;a7 of the ,internal ,revenue ,code of #aihf71 has entered into a service contract 7within the meaning of section #ggje7;e77#b7 of such ,code7 with respect to its clients that adopt the defined contribution multiple employer pension plan4 7,,ii7 ,the organization meets #e or more of the following criteria with respect to employees of client employers participating in the multiple employer pension plan3 7aa7 ,the organization is responsible for payment of wages to employees of its client employers that adopt the plan without regard to the receipt or adequacy of payment from such client employers4 7bb7 ,the organization is responsible for reporting1 withholding1 and paying any applicable ,federal employment taxes for its client employers that adopt the plan1 without regard to the receipt or adequacy of payment from those client employers4 7cc7 ,the organization is responsible for recruiting1 hiring1 and firing workers of its client employers that adopt the plan in addition to the client employer's responsibility for recruiting1 hiring1 and firing workers4 7dd7 ,the organization is responsible for establishing employment policies1 establishing conditions of employment1 and supervising employees of its client employers that adopt the plan in addition to the client employer's responsibility to perform such functions4 7ee7 ,the organization is responsible for determining employee compensation1 including method and amount1 of employees of its client employers that adopt the plan in addition to the client employers' responsibility to determine employee compensation4 7ff7 ,the organization is responsible for providing workers' compensation coverage in satisfaction of applicable ,state law to employees of its client employers that adopt the plan1 without regard to the receipt or adequacy of payment from those client employers4 7gg7 ,the organization is responsible for integral human-resource functions of its client employers that adopt the plan1 such as job-description development1 background screening1 drug testing1 employee-handbook preparation1 performance review1 paid time-off tracking1 employee grievances1 or exit interviews1 in addition to the client employer's responsibility to perform such functions4 7hh7 ,the organization is responsible for regulatory compliance of its client employers participating in the plan in the areas of workplace discrimination1 family and medical leave1 citizenship or immigration status1 workplace safety and health1 or ,program ,electronic ,review ,management labor certification1 in addition to the client employer's responsibility for regulatory compliance4 7ii7 ,the organization continues to have employee-benefit-plan obligations to multiple employer pension plan participants after the client employer no longer contracts with the organization4 7iii7 ,the ,secretary may determine that an organization performs substantial employment functions based upon finding that such organization meets as few as a single criterion under subclause 7,i7 or 7,,ii7 of clause 7ii74 4