Employee Benefits
2026 Benefits State of the Union: High-Cost Drugs and What They Mean for Your Health Plan
According to Mployer Insights’ 2026 analysis of 50,000+ employer health plans, prescription drugs account for over 25% of total benefit expenses, with Tier 4 specialty drugs driving the majority of high-cost claims. While Tier 4 copays average $123 with coinsurance requirements in 31% of plans, individual oncology therapies like Darzalex Faspro ($170,800/yr) and Keytruda ($158,200/yr) frequently exceed average individual stop-loss deductibles ($141,938). To mitigate exposure, self-funded employers are increasingly turning to independent, transparent PBM models and biosimilar substitution—which yields up to a 73% net cost reduction per patient.
August 9, 2026

The Likely Fastest-Growing Line in Your Benefits Budget

Modern medicine has produced remarkable advances. Cancer therapies that were not available five years ago are now extending and saving lives. Treatments for autoimmune diseases, multiple sclerosis, and rare genetic conditions are giving employees and their families real options where few existed before. As an employer, providing access to these treatments through your benefit plan is one of the most meaningful things your organization does for the people who work there.

It also comes with a financial reality that every benefits decision maker needs to understand clearly. Over 25% of total employer health benefit expenses are now driven by prescription drugs, and within that figure, a small number of specialty drugs account for an outsized share of the cost. A single covered employee on an oncology therapy can generate $100,000 to $170,000 or more in annual drug spend. A handful of members on these treatments can represent a larger budget impact than the entire pharmacy spend of the rest of your workforce combined. The goal is not to restrict access to these medications. The goal is to understand how the system works, how costs flow, and how to structure your plan so that both your employees and your organization are best positioned for the long term.

This piece covers how the pharmacy benefit system works, how your plan’s tier structure determines who pays what, how stop-loss insurance interacts with high-cost drug claims, and what employers can do to manage this exposure thoughtfully.

The tier structure in the chart above reflects how plans already account for the cost complexity of specialty drugs. Tier 4, which is where specialty biologics and injectables are typically placed, carries significantly higher cost-sharing than the other tiers: an average employee copay of $123 and coinsurance requirements in 31% of plans. But Tier 4 behaves very differently from the other tiers. On Tier 1, 2, and 3 drugs, cost-sharing is relatively predictable and manageable. On Tier 4, the combination of high drug cost and percentage-based coinsurance can generate out-of-pocket exposure that approaches or exceeds a patient’s annual out-of-pocket maximum in a single month of therapy. How Tier 4 is structured, what controls are in place, and how the plan manages cost is one of the most consequential design decisions an employer makes.

Understanding Your Benefit Plan’s Pharmacy Options

How Pharmacy Benefit Managers Work

Most employer health plans do not manage pharmacy benefits directly. That function is delegated to a Pharmacy Benefit Manager, or PBM, which acts as the intermediary between the health plan, the pharmacy, and the drug manufacturer. The PBM builds and maintains the formulary, negotiates drug prices and rebates with manufacturers, contracts with pharmacy networks, and processes pharmacy claims. The three dominant PBMs, Express Scripts (owned by Cigna), CVS Caremark (owned by CVS Health / Aetna), and OptumRx (owned by UnitedHealth Group), together manage the pharmacy benefits of approximately 80% of covered lives in the United States. Each is affiliated with a major carrier, meaning that employers who use an ASO medical arrangement often default to the carrier’s affiliated PBM without realizing it. Independent PBMs such as Capital Rx, Navitus, and MedOne Pharmacy Benefit Solutions operate on transparent, pass-through pricing models that return all rebates to the plan rather than retaining them as PBM revenue. PBMs are compensated through administrative fees, spread pricing (charging the plan more than the pharmacy receives and keeping the difference), manufacturer rebates in exchange for formulary placement, and specialty pharmacy margin. For any employer managing meaningful specialty drug spend, understanding which of these revenue sources applies to your contract is essential.

How Drug Tiers and Cost-Sharing Work

Every pharmacy benefit plan organizes covered drugs into tiers, with cost-sharing that increases as you move from Tier 1 generics (avg. $12 copay) through Tier 2 preferred brands ($40), Tier 3 non-preferred brands ($71), and into Tier 4 specialty drugs ($123 copay, with coinsurance in 31% of plans). The tier placement of a drug affects both what the employee pays and, indirectly, what the plan pays, since tier placement drives utilization patterns. Plan sponsors have real levers here: step therapy (requiring a patient to try a lower-cost drug first), prior authorization, specialty pharmacy channel mandates, and formulary exclusions all affect Tier 4 cost without eliminating clinical access. These controls require balancing cost management with the reality that for many specialty drugs, no lower-cost alternative achieves the same clinical outcome.

How Stop-Loss Insurance Interacts with High-Cost Drug Claims

For self-funded employers, specialty drug claims are now among the most common triggers for individual stop-loss reimbursement. A single employee on a cancer therapy or rare disease treatment can generate pharmacy claims that exceed the plan’s specific stop-loss deductible, which averages $141,938 nationally for self-insured plans, within a single plan year. The mechanics: the employer pays all claims up to the deductible threshold, and the stop-loss carrier reimburses costs above it. Several dynamics are specific to high-cost drugs. At renewal, stop-loss carriers may laser a known high-cost member by raising their individual deductible or excluding them from coverage. Some carriers now specifically carve out GLP-1 medications or other high-utilization drug categories from stop-loss reimbursement, so employers adding new drug coverage should verify what their contract covers. Specialty drugs can also be administered under either the pharmacy benefit or the medical benefit depending on whether they are self-administered or clinic-administered, and some stop-loss contracts apply different terms to each channel. Employers should model their actual specialty drug cost distribution against their stop-loss deductible at every renewal to understand where the plan’s real exposure sits.

The Costliest Specialty Drugs: What They Treat and What They Cost

The chart below shows the highest-cost specialty and biologic drugs by average cost per patient, ranked from most to least expensive. Cancer therapies dominate the top of the list, but treatments for autoimmune conditions, MS, and inflammatory disease also appear, reflecting how broadly specialty drug spending is distributed across a workforce.

  • Darzalex Faspro (daratumumab/hyaluronidase) | $170,800 avg. annual cost per patient. Janssen (J&J). Multiple myeloma, a blood cancer. The highest-cost drug on the list by average patient cost. The subcutaneous formulation allows home administration, increasing the likelihood it flows through the pharmacy benefit rather than the medical benefit.
  • Keytruda (pembrolizumab) | $158,200 avg. annual cost per patient. Merck. FDA-approved across more than 40 cancer indications including lung, melanoma, head and neck, and bladder cancers. One of the most prescribed oncology drugs globally and one of the most common high-cost pharmacy claims in large employer plans.
  • Yervoy (ipilimumab) | $149,800 avg. annual cost per patient. Bristol-Myers Squibb. Melanoma and in combination with Opdivo for lung and other cancers. Combination Yervoy plus Opdivo therapy is among the highest per-patient drug cost regimens in common use.
  • Enhertu (trastuzumab deruxtecan) | $139,800 avg. annual cost per patient. AstraZeneca / Daiichi Sankyo. HER2-positive and HER2-low breast and gastric cancers. A significant recent clinical advance for patients with cancers that previously had limited options after first-line treatment.
  • Opdivo (nivolumab) | $135,600 avg. annual cost per patient. Bristol-Myers Squibb. Melanoma, lung, kidney, bladder, and other cancers. Frequently used in combination with Yervoy, compounding cost significantly when both are prescribed together.
  • Ocrevus (ocrelizumab) | $106,200 avg. annual cost per patient. Genentech. Relapsing and primary progressive multiple sclerosis. MS therapies are a persistent specialty drug cost driver because patients remain on therapy for years, making each diagnosed member a multi-year plan cost.
  • Entyvio (vedolizumab) | $56,600 avg. annual cost per patient. Takeda. Moderate-to-severe Crohn’s disease and ulcerative colitis. Inflammatory bowel disease therapies are among the most common specialty drug claims in employer plans because the conditions are prevalent in working-age adults.

Biosimilars: The Cost Opportunity Most Employers Are Not Fully Using

A biosimilar is a biologic drug that is highly similar to an already-approved reference biologic, with no clinically meaningful differences in safety, purity, or potency. Biosimilars are not generic drugs in the traditional sense, because biologic drugs are complex proteins manufactured from living cells and cannot be chemically replicated exactly. But they go through an FDA approval pathway that confirms their clinical equivalence to the reference product, and they cost significantly less. The biosimilar market has expanded rapidly as major biologic patents have expired. Humira, the world’s best-selling drug for much of the past decade, now has multiple biosimilar competitors in the U.S. Stelara has followed. The oncology biosimilar pipeline is maturing, with more approvals expected in the next two to three years.

The chart above shows what biosimilar substitution looks like in dollar terms. For Humira, the net price after rebates and negotiated discounts is $2,370 per box. The biosimilar Yusimry has an estimated net price of $635, a 73% reduction. For Stelara, the reference drug net price is $7,636 per box. The biosimilar Starjemza has an estimated net price of $4,010, a 47% reduction. For an employee on monthly Humira therapy, the difference between the reference drug and the biosimilar is approximately $21,000 per year in net plan cost. For a Stelara patient, the annual difference is approximately $43,500. Across even a small number of members on these therapies, biosimilar substitution is one of the highest-return cost management interventions available.

Plan sponsors have four main tools to drive biosimilar adoption: preferred formulary placement (putting the biosimilar on a lower tier and the reference drug on a higher tier), step therapy for new patients, automatic substitution where state law permits, and formulary exclusion of the reference drug entirely. The most important variable in any biosimilar strategy is whether your PBM has a financial incentive to keep the reference drug preferred. A PBM earning a large rebate on Humira has a direct financial reason to keep Humira on the preferred formulary, even when the biosimilar costs the plan less on a net basis. Independent PBMs operating on pass-through pricing remove this conflict entirely, because all rebates return to the plan and formulary decisions are made without a competing financial interest.

What Employers Should Be Asking About Their Pharmacy Benefit

High-cost drug management requires active decisions about PBM contract structure, formulary design, specialty pharmacy strategy, and stop-loss alignment. The questions worth asking at every renewal:

  • Is your PBM contract pass-through or spread-based? A pass-through model means you pay exactly what the pharmacy receives and all rebates come back to the plan. A spread-based model means the PBM earns revenue that is not visible in the administrative fee. Request full compensation disclosure under the CAA requirements.
  • Are you receiving all available biosimilar savings? Ask your PBM for a net cost comparison of each reference drug plus rebate against the available biosimilar net price. The answer will tell you whether your formulary is designed around the plan’s cost interest or the PBM’s rebate interest.
  • What is your specialty drug channel strategy? Are specialty prescriptions being filled through your PBM’s affiliated specialty pharmacy? Carving specialty to an independent pharmacy or using a white-bagging program for clinic-administered drugs can generate meaningful cost differences.
  • How does your stop-loss deductible interact with your specialty drug exposure? Model your actual specialty drug claims against your stop-loss threshold. If most of your high-cost drug claims fall below the deductible, the plan is absorbing those costs without triggering reimbursement.
  • Does your formulary have appropriate Tier 4 controls? Step therapy, prior authorization, and quantity limits on specialty drugs reduce cost without eliminating clinical access. Without these controls, high-cost therapies can be approved and dispensed without any plan-level review of whether a lower-cost alternative exists.

Know How Your Pharmacy Benefit Compares

Pharmacy is now one of the two or three most consequential cost management decisions in health plan design. The employers managing it well are not restricting access to the medications their employees need. They are ensuring that the structure of the benefit, the PBM contract, the formulary design, and the stop-loss coverage work together in the plan’s interest, and that every dollar spent on high-cost drugs is spent as efficiently as possible.

Mployer’s benefits rating evaluates pharmacy benefit design as part of the Medical pillar score, benchmarked against a custom cohort matched by size, region, and industry. Knowing where your pharmacy benefit stands relative to employers who actually look like you is the starting point for making better decisions.

See how your benefits package compares to your custom cohort at MployerAdvisor.com.

Sources

Mployer Insights: Average Spend by Setting, Prescription Structure, and High-Cost Specialty Drugs. Source: Mployer Insights analysis.

MedOne Pharmacy Benefit Solutions: Biosimilar substitution impact data for Humira/Yusimry and Stelara/Starjemza. MedOne is a leading independent PBM focused on improving health outcomes and reducing net costs for self-funded employers. [email protected].

Mployer 2025 and 2026 Employee Benefit Plan Design Study, covering 50,000+ employer plans. Individual stop-loss avg $141,938 self-insured.

Consolidated Appropriations Act of 2021, Section 202: broker/consultant compensation disclosure requirements for group health plans.

FDA Biosimilar approval framework: 42 U.S.C. Section 262(k).

Insurance Brokers
What Is the Hourly Cost for an Insurance Consultant?
The article explores the hourly cost for hiring an insurance consultant, including the factors that affect the cost and the average rates in different regions. It provides insights for employers who are considering using an insurance consultant to navigate the complexities of the healthcare system.
Author:
Abbey Dean
February 10, 2021

As regulations and business expenses rise, so has the value employers place on advice about insurance and benefits. Insurance consultants and advisors are sought for many risk management and insurance services.

The hourly fees for an insurance consultant depend on the size and complexity of the insurance policy being taken out, along with the scope of the consultant’s services.

It is critically important to know what is included in standard fees and/or commissions for consultants, advisors, and brokers as you look for help with insurance and benefits.

In this post, we explore what it costs to hire insurance consultants and what makes these advisors valuable.

What Does It Cost to Hire an Insurance Consultant?

The cost of using a consultant to insure your business depends on the type of business, amount of coverage you need, optional coverage policies, and complexity of your insurance and benefits management.

A consultant’s fees, also called “intermediary fees,” are fees that insurance buyers pay consultants or brokers on top of a policy’s premium. The cost to hire an insurance consultant ranges depending on the size of your company, your operations, and complexity of the insurance policy or services provided.

Broadly speaking, commissions and fees usually fall between 10% and 25% of the base premium amount. It all depends on your state, your size, and what type of insurance you need, but average consulting fees are typically 15% of the policy premium.

Traditionally, an insurance consultant works on a fee for service, and an insurance broker works for commission based on the policy’s premium.

Consultants usually charge fees instead of, or in addition to, a commission that’s included in your premium payment. This is in the form of a direct invoice of billable hours or direct offset billable hours with commissions received.

As opposed to brokers, consultants are usually not paid commissions from the insurance company, which means they charge a consultant’s fee for services. Unless of course, the client prefers them to receive commissions and offset their billable hours or fees.

Why Hire an Insurance Consultant for Your Business?

A good insurance consultant will understand coverages and policies tailored specifically to your business, and will find ways to maximize protection and minimize cost with your coverage.

Consultants should be involved with your business strategy and involved with you several times per year or as often as you need their services.

Here are key services that insurance consultants offer:

  • Find and implement insurance policies, advise on employee benefits, offer plan administration and provide compliance documentation.
  • Create strategic, long-term plans suited to the needs of the business, including financial modeling, risk management and large claims processing.
  • Competitive benchmarking to assess the role of benefits in recruitment and retention, making benefits a talent attraction and retention tool.
  • Specialized expertise in Risk Management and Health and Welfare.

How Do I Vet an Insurance Consultant?

There are about 413,000 insurance consultants and associated businesses in the U.S. as of January 2021, according to IBIS World. But how do you vet an insurance consultant to find the one that is right for your company?

Insurance buyers should compare brokers and consultants based on professionalism, demonstrated knowledge in insurance, understanding of your industry, transparency and cost.

When you are looking to hire a broker, consultant or advisor, you can focus on three things: what they do, how well they’ve done it, and how they get paid. The right expert for your business will have a proven track record of helping businesses like yours solve their insurance and benefits problems.

The quickest way to vet your insurance consultant is to visit Mployer Advisor, a free broker marketplace that allows employers to compare licensed insurance consultants in every state.Looking for more exclusive content? Check out what’s trending on the Mployer Advisor blog.

Insurance Brokers
Insurance Broker vs. Carrier
The article discusses the difference between an insurance broker and an insurance carrier. An insurance broker works on behalf of the client to find the best insurance coverage and rates, while an insurance carrier provides the insurance policy directly to the client.
Author:
Abbey Dean
September 1, 2020

From “policyholder” to “premiums” and “providers,” much of the jargon used in the insurance industry isn’t easy to keep straight. For those unfamiliar with the difference between an insurance broker and carrier, Mployer Advisor outlines the distinction below.

What Is an Insurance Broker?

An insurance broker is a licensed professional who helps businesses evaluate and select insurance policies. Unlike insurance agents, brokers do not work for a particular insurance company. Rather, they represent employers and work to help businesses find the best plans and coverage for their needs.

Some brokers work with individuals rather than companies. However, the type of broker an employer will work with deals primarily or exclusively with procuring insurance coverage for businesses. These brokers are often called business insurance brokers or commercial insurance brokers.

There are several types of commercial insurance brokers, such as health insurance brokers, property & casualty (P&C) insurance brokers, liability insurance brokers and more.

Insurance brokers assess the unique needs of a given employer, then work with insurance carriers to negotiate and select an array of coverage options. For this reason, employers who work with a broker often end up with more choices than those who shop online or purchase directly from an insurance provider.

As a result, employers are able to evaluate a variety of plans and policies that an insurance broker brings to the table. Employers can compare coverage, costs and more in order to select the best plans for their company and their employees.

An insurance broker typically gets paid by commission. Usually this commission is built into the premiums paid by policyholders every month. Thus, it’s not a separate payment, but included in the price of the policy purchased through the broker.

Learn more about broker commissions and fees or try our commission calculator to see if your insurance broker costs are competitive for your market.

Connect me with a broker

What Is an Insurance Carrier?

An insurance carrier is the company that actually provides the insurance policy. Also called an insurance provider or insurance company, a carrier offers one or more insurance products to individuals or groups, such as health insurance, property and casualty insurance, workers’ compensation and more.

In other words, a carrier is the company you pay premiums to. They underwrite your insurance policy and pay out for claims.

Examples of large insurance carriers include State Farm, Allstate, Humana, Cigna and Progressive.

Insurance carriers can offer policies for individuals, such as Geico’s car insurance or Liberty Mutual’s life insurance. However, carriers can also offer business insurance which covers a company or a group of employees. Examples include Blue Cross Blue Shield’s group health plans and Delta Dental’s group dental insurance. Looking for more exclusive content? Check out what’s trending on the Mployer Advisor blog.

Employee Benefits
Can I Negotiate Insurance Broker Fees and Commissions?
In this article, the author explains that it is possible to negotiate insurance broker fees and commissions. The article provides tips for negotiating with brokers and suggests that employers should be prepared to ask for a breakdown of fees and commissions and consider multiple broker options before making a decision.
February 28, 2020

Is it Possible to Negotiate Insurance Broker Fees?

Negotiating the fees you pay to your business insurance broker may be possible, and is largely dependent on the size of your company, as well as the specific internal incentive policies of your insurance provider.

Anytime that fees and especially commissions are involved in business transactions, the first question that often comes to mind for the customer or client is, ‘Can those commissions and fees be reduced?'

Given that insurance is a field in which commissions and fees make up most if not all of broker compensation packages, this is a question that comes up a lot.

In many ways, buyers are almost conditioned to have this response, given that so many industries use reduced commissions and fees as one of the primary incentives to induce a potential buyer into closing the sale. But is that how it works with insurance brokers, too? Can a buyer negotiate their way to lower broker compensation?

Insurance Broker Commissions Calculator

In What Situation Might a Company Negotiate Broker Fees?

While far, far less common of an occurrence in the world of insurance than it is in car sales, the answer is that it may be possible to negotiate for reduced fees and commissions with a broker.

The likelihood of that negotiation being successful, however, varies widely depending on a few key factors – specifically, the size of the buyer’s company, the type of fees and commissions in questions, and the policies of the provider with regard to matters of broker compensation.

  • Company Size: As with many factors involving insurance, whether or not your company is able to negotiate-down brokers fees is largely a function of the size of your company. If you have fewer than 100 employees, it will be nearly impossible to negotiate your broker fees as a general rule. While there may always be exceptions to any rule, this tends to be a fairly firm general guideline.
  • With more than 100 employees, it never hurts to ask for a fee reduction, though the likelihood of effectively negotiating for such a reduction goes up significantly as your employee pool size passes several hundred and approaches 1,000.
  • Types of Fees and Commissions: Any attempt to negotiate a reduction in fees or commissions must first begin with a complete understanding of how all fees and commissions are being paid out to the broker. Many states have laws requiring the disclosure of how brokers earn their compensation, and even where such laws aren’t on the books, just about any broker with which you’re likely to want to work will be forthright with such information. As a result, gaining a thorough understanding of how your broker is compensated and incentivized can usually be accomplished simply by asking.
  • While brokers are more rarely going to be able to offer reductions in their base commission, they may have more flexibility to work with additional incentive compensation such as contingent or supplemental commissions.
  • Provider Policy: Even if your company is large enough to make negotiating-down commissions and fees feasible, and even if your broker has agreed in principle to such a fee reduction, the specific policies of your provider will most likely be the determining factor as to whether or not such a fee reduction can be implemented.
  • Similar to determining and having a thorough understanding of all the ways in which your broker will be compensated, figuring out whether such brokerage fee and commission negotiating is even possible is something that you’ll want to do at the outset of the process when vetting various brokers and providers and policies in the first place. Further, along the same lines as determining the ins-and-outs of your broker’s compensation package, if you neglected to inquire about these details prior acquiring your insurance coverage, it’s still never too late to ask!

Why Not Try to Negotiate Your Broker Fees?

Whether or not you and/or your company are ultimately successful at negotiating a lower rate for your broker’s commission and fees, there is little to no downside to inquiring about the possibility.

When evaluating potential new insurance brokers with whom you’re considering working, such a discussion can be a good way to broach the subject of the various ways and contingencies that your broker may be compensated, which is always good information to have available.

In situations where your company may have been working with the same broker for years, raising this issue may be a good way to come by a better understanding of your broker’s compensation structure if you’re not familiar with it already. Additionally, such a discussion may serve as inspiration and motivation to reassess your insurance situation in general, potentially leading to a desire to compare your broker’s and provider’s negotiation flexibility with that of other brokers and providers on the market.

In any case, if such an inquiry leads you to consider changing brokers or reevaluating and potentially refreshing your insurance policies, access Mployer Advisor's searchable database. You can find and contact brokers who meet all the criteria and qualifications most relevant to you and your business.Search Insurance Brokers Near You

Looking for more exclusive content? Check out what’s trending on the Mployer Advisor blog, or learn more about broker fees and comissions here.

Insurance Brokers
Employer Health Insurance Broker vs. Employee Benefits Advisor
This article examines the differences between employer health insurance brokers and employee benefits advisors, and provides guidance on choosing the right type of professional to meet a company's needs. It discusses the services each type of professional typically offers, how they are compensated, and what factors to consider when making a decision.
August 28, 2019

There are many challenges to overcome when an organization is determining what employer health insurance plan is the best fit for their specific needs. However, there are professionals who can help guide you through the process, such as health insurance brokers, employer benefits advisors, and consultants. What are each of these roles and how do they differ?

To help navigate the potential advantages and pitfalls in their paths, employers and their HR departments have historically turned to outside employer health insurance brokers in order to present them with options and help advise the decision-making process. As the employer health insurance market has in many ways become increasingly complicated over the years (and because there can be a perceived conflict of interest with regard to broker commission structure), additional guidance roles have been established to fill the informational gaps.

Those roles are often labeled employer health insurance advisor/consultant or employee benefits advisors, but - as with employer health insurance brokers – their function is guiding employers toward their ideally optimized health and benefit plan coverage. Given that all of these labels accompany a similar advisory role, one of the main differences is how each may be compensated – although there is a great deal of overlap there, as well.

What is an Employer Health Insurance Broker?

Traditionally, employer health insurance brokers have been the primary means through which companies have attained employer health insurance benefits for their employees. Brokers often work directly with one or more insurance providers and will typically be required at some point in the coverage process even when working with an outside advisor or consultant to build the coverage plan for the employer.

  • Primary function: Analyze the circumstances of a given employer and provide options to resolve their employer health insurance needs.
  • Payment and compensation: Typically commission-based, though there are exceptions.
  • Differentiating factor: Brokers are licensed professionals who work directly with one or more health insurance providers. The options they are able to provide an employer may be limited by their relationships with affiliate insurance providers, but they are also the most direct way to access those insurance providers given that employee benefits consultants and advisors will still need to go through an employer health insurance broker in order to execute the plan.

What is an Employee Benefits Advisor?

Employee benefits advisors primarily serve a complementary role to brokers in an employer’s effort to attain health insurance coverage for the company employees.

In fact, after working with a client to determine the ideal scope of coverage for that client, employee benefits advisors will then assist the client in evaluating potential brokers in order to assess which broker can provide the coverage that best fits the client’s needs.

  • Primary function: Analyze the circumstances of a given employer and provide options to resolve their employer health insurance needs, including making connections with relevantly specialized brokers and vetting choices in accordance with their clients’ goals.
  • Payment and compensation: Typically fee-based, though commission-based and other arrangements are also possible.
  • Differentiating factor: In addition to employer health insurance coverage, employee benefits advisors may take a broader approach to optimizing employee benefits plans and have more tools at their disposal than employer health insurance coverage alone when helping an employer put together a comprehensive benefits package uniquely suited to their organizational needs.

What is an Employee Health Insurance Consultant?

Similar to an Employee Benefits Advisor, Employee Health Insurance Consultants serve a complementary role to brokers. In many ways, the designations of benefits advisors and consultants can be interchangeable, although such designations can be used to convey distinctions between fee structure or the depth of background analysis involved in general.

  • Primary function: Analyze the circumstances of a given employer and provide options to resolve their employer health insurance needs, including making connections with relevantly specialized brokers and vetting choices in accordance with their clients’ goals.
  • Payment and compensation: Can be either fee or commission-based.
  • Differentiating factor: As a term, employer benefit consultant can for the most part be used interchangeably with employer benefit advisor, although using ‘consultant’ may imply a greater degree of emphasis on the initial conditional analysis while using ‘advisor’ typically places more focus on the advisement with regard to selecting from among employer health insurance coverage and brokerage options going forward.

How to Find a Good Employee Benefits Advisor

When selecting someone to help guide your organization through the procurement of employer health insurance – whether it be a broker, an employee benefits advisor, or a consultant – the key questions to ask are what relationships and specialization does this person have that may either limit or expand the options that they can present me with as a result.

Also, it is important to understand how this person will be compensated for their work and how that incentive structure may in turn affect the advice you receive, how reliable you feel that it is, and with what confidence you can assure others in your organization that you have achieved the optimum result.

Additionally, in the process of selecting a broker, employee benefits advisor, or consultant to work with, you may find it advisable to search among professionals in those fields who operate locally and/or who specialize in your industry if there are industry-specific factors that may require special consideration.

In fact, you may wish to contact such a professional to help determine if there are industry-specific considerations that you may be able to benefit from and to which you are otherwise currently unaware.

You may even want to contact the brokers, consultants, and/or employee benefits advisors who have been working with those tiresome competitors who keep poaching your talent – or perhaps you’d be better served by contacting the advisors and brokers of the competitor with such thoughtful and comprehensive benefits packages that their employees can’t seem to be poached.

Find the Right Insurance Broker Today

Luckily, searching for the right broker, consultant, or employee benefits advisor to best serve the needs of your organization is easier than ever before through harnessing the power of public databases. Not only can you refine your search by a variety of different criteria, you will also have access to an algorithmically compiled rating system, thereby ensuring that the professional you choose to work with is verifiably capable of meeting your needs.

With such powerful tools at your disposal - despite that the employer health insurance and benefit plan market may seem murkier than ever - finding the perfect broker, consultant, or employer benefits advisor to suit your organization’s needs requires little more than a few clicks to get the process started.

Mployer Advisor helps employers find top-rated insurance brokers, advisors, and consultants. Our listing database also showcases customer reviews and feedback to help you compare and evaluate different brokers. Start your search today.

Find brokers near you.

Looking for more exclusive content? Check out what’s trending on the Mployer Advisor blog or read more about insurance brokers here.

Employee Benefits
2026 Benefits State of the Union: Leave Benefits Part 1 of 2: Vacation, Holidays, Sick Leave & Workplace Flexibility
Mployer rates employer benefit plans across four pillars: Medical, Ancillary, Leave, and Retirement. Of the four, leave carries the lowest direct cash cost to the employer outside of the opportunity cost of time away from work...
Author:

Leave Is the Benefit Employees Feel Every Week

Mployer rates employer benefit plans across four pillars: Medical, Ancillary, Leave, and Retirement. Of the four, leave carries the lowest direct cash cost to the employer outside of the opportunity cost of time away from work. And yet leave is consistently among the highest-valued benefits employees cite, particularly among workers entering the workforce in the past two decades. For younger employees who grew up with greater flexibility as an expectation rather than a perk, PTO policies, remote work options, and holiday calendars are not peripheral considerations. They are factors that influence job acceptance decisions, day-to-day job satisfaction, and the calculus of whether to stay or leave.

This is Part 1 of a two-part series on leave benefits. This post covers the foundational elements: vacation, paid holidays, sick leave, consolidated vs. non-consolidated leave structures, workplace flexibility, and the legal framework that governs when leave is required vs. when it is discretionary. Part 2 will go deep on maternity and parental leave, including benefit duration, disability payment interaction, top-off provisions, and how this rapidly evolving category varies by industry and employer size.

The Legal Framework: What Is Required and What Is a Choice

Before reviewing the benchmarks, it is important to understand the distinction between leave that employers are legally required to provide and leave that is entirely discretionary. Many employers conflate these, either overclaiming legal mandates that do not apply to them or unknowingly underdelivering on ones that do.

FMLA: The Federal Floor

The Family and Medical Leave Act of 1993 (FMLA) is the primary federal law governing employee leave. It requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave per year for qualifying reasons, including the birth or adoption of a child, a serious health condition of the employee or a close family member, or qualifying military exigencies. A critical word in that sentence is unpaid. FMLA guarantees job protection and continuation of health insurance during leave. It does not require the employer to pay the employee during that time.

FMLA applies to employers with 50 or more employees within 75 miles. Eligible employees must have worked for the employer for at least 12 months and logged at least 1,250 hours in the prior year. Employers below 50 employees are not covered by federal FMLA, which is a meaningful distinction for the substantial share of small employers in the national workforce.

State Leave Laws: A Patchwork Expanding Rapidly

State leave laws have multiplied significantly over the past decade and frequently go beyond FMLA in scope, coverage thresholds, or paid leave requirements. Several categories are worth understanding:

  • State FMLA equivalents. Many states have their own family and medical leave laws that cover smaller employers than federal FMLA. California, New Jersey, New York, Washington, Massachusetts, Connecticut, Oregon, Colorado, and others have state-level laws with their own thresholds, durations, and coverage rules. An employer with 15 employees in California faces leave obligations that a similarly sized employer in a state without equivalent law does not.
  • Paid family and medical leave programs. A growing number of states have established state-run paid leave insurance programs, funded through payroll contributions from employees, employers, or both. These programs pay a wage replacement benefit to employees on qualifying leave. Employers in these states do not necessarily pay the leave benefit directly, but they are responsible for administering the program, managing payroll deductions, and coordinating the state benefit with any employer-provided leave.
  • Paid sick leave mandates. More than a dozen states and many municipalities now require employers to provide a minimum number of paid sick leave days, regardless of size. The minimums vary by jurisdiction, typically ranging from 3 to 5 days per year for smaller employers to more generous amounts for larger ones. Employers operating in multiple states must manage a patchwork of minimum requirements.

The practical implication for any multi-state employer: your leave compliance obligation is not a single federal standard. It is the most protective standard that applies in each jurisdiction where you have employees. Staying current requires active monitoring as state laws continue to evolve.

Paid Holidays: No Federal Requirement for Private Employers

Here is a fact that surprises many employees and even some HR professionals: private sector employers in the United States have no federal legal obligation to provide any paid holidays. The list of federal holidays, which includes New Year’s Day, Independence Day, Thanksgiving, Christmas, and others, applies to federal government employees. Private employers are entirely free to choose which holidays to observe, how many to provide, and whether they are paid.

In practice, the market has established strong norms around holiday calendars. Employers who observe fewer than the common major federal holidays face a competitive disadvantage in recruiting. But the specific holidays offered, the total number, and whether floating holidays or personal days supplement the calendar are all employer-determined choices with real variation in the market.

Six paid holidays is the single most common offering nationally, provided by one in five employers. But the distribution spans from five or fewer to thirteen or more, and the seven-day average is pulled upward by generous employers at the top of the range. The practical range of six to nine days covers 65% of employers. An employer offering five or fewer paid holidays is below market in a way that is visible to candidates who are comparing offers. An employer offering ten or more is offering a genuinely above-market benefit that is worth communicating explicitly in recruiting.

It is also worth noting the difference between public and private sector norms. Federal and state government employers typically observe all federal and state holidays, often reaching 11 or more paid days annually. Private employers who compete for talent against government roles, especially in certain regions or professional categories, face a visible gap if their holiday calendar is at the lower end of the private sector range.

Key Terms Every Benefits Decision Maker Should Know

  • Consolidated (or PTO) leave. A consolidated leave plan pools vacation, sick, and personal days into a single paid-time-off bank that employees draw from as needed. Employees decide how to use the time without categorizing it. Employers gain administrative simplicity and eliminate the awkward dynamic of employees being required to call in sick when they are taking a mental health day or handling personal matters. 46% of employers nationally offer consolidated leave, according to Mployer’s 2026 data.
  • Non-consolidated leave. A non-consolidated structure tracks vacation, sick, and personal days as separate buckets with their own balances, accrual rates, and rules. Employees must use the appropriate category for each absence. While more administratively complex, non-consolidated plans can provide more total time off since employees tend not to use all of their sick days in low-illness years.
  • Carryover. Carryover provisions allow employees to roll unused leave from one year into the next. 65% of employers offer a carryover provision for sick days. 19% allow unlimited carryover. The alternative, use-it-or-lose-it policies, encourages employees to take time off but creates end-of-year pressure and can result in operational disruption.
  • Unlimited PTO. An arrangement where no fixed cap is placed on paid time off. The employee takes what they need with manager approval. Only 9% of employers offer this nationally, despite its outsized visibility in recruiting. Research consistently shows that employees with unlimited PTO often take less time off than those with defined banks, because the absence of a defined balance creates ambiguity about what is truly acceptable.
  • Accrual. Leave accrues over time, typically expressed as hours per pay period or days per month. New employees often have limited leave in their first year. Employers who front-load leave at the start of each year, rather than requiring it to accrue, offer a more employee-friendly structure.
  • Top-off. In the context of disability-related leave, an employer may top off a short-term disability benefit by paying the difference between the disability wage replacement (typically 60% of salary) and the employee’s full salary. This is most relevant in parental leave design and will be covered in depth in Part 2.

The chart above shows a consistent pattern across all tenure milestones: employees at employers with consolidated leave plans receive meaningfully more vacation days than those on non-consolidated plans. At one year of tenure, the gap is 4.3 days (13.5 consolidated vs. 9.2 non-consolidated). At 20 years, the gap is 4.2 days (22.3 vs. 18.1). This reflects the structural reality that consolidated plans typically set a total PTO balance that includes what would otherwise be split across vacation, sick, and personal categories. The total bank is larger because it is serving multiple purposes.

The tenure progression also matters for employers thinking about leave as a retention tool. An employee at year 5 in a consolidated plan has 17.6 days. Their counterpart at a non-consolidated employer has 13.2. That 4.4-day difference compounds over a career and becomes a meaningful factor in whether a tenured employee considers leaving. Employers who have not benchmarked their vacation accrual schedule by tenure against peers in their industry and size band may not realize how their program compares at the years of service where retention pressure is highest.

Workplace Flexibility: The Post-Pandemic Recalibration

Workplace flexibility surged during the pandemic and became one of the most cited employee preferences in every post-2020 benefits survey. The 2026 data shows the market pulling back from its pandemic peak. Fully remote arrangements are now offered by 23% of employers, work-from-home options by 22%, and unlimited PTO by just 9%. These numbers are lower than what many employees experienced at the height of 2020 to 2022, and that gap between expectation and current market reality is one the most active sources of employee dissatisfaction in leave-related discussions.

For employers, the flexibility picture requires honest self-assessment. If your organization has pulled back from flexibility arrangements that were extended during the pandemic, the competitive context has shifted: the employers who maintained those arrangements are now differentiating on a dimension that is highly visible to candidates. If your business model genuinely requires in-person work, the relevant benchmark is not the fully remote employer but the other employers in your industry and region competing for the same workforce. That is exactly the kind of cohort comparison a custom benchmarking analysis provides.

Sick Leave and Carryover: The Details That Matter

Sick leave policy is one of the most administratively variable elements of a leave program. 65% of employers offer a carryover provision that allows unused sick days to roll into the following year. 19% allow unlimited carryover, placing no cap on the sick day balance an employee can accumulate over time. Use-it-or-lose-it sick policies, while simpler to administer, can create employee hardship in years with significant illness and may conflict with state-level sick leave mandates in jurisdictions that explicitly require carryover.

The interaction between sick leave and short-term disability coverage is also worth understanding. For many employers, sick leave effectively serves as the waiting period, or elimination period, before short-term disability benefits begin. An employee with 10 accrued sick days who experiences a two-week illness may use those sick days before STD coverage activates. Employees without sufficient sick leave balances, or in plans where sick leave and STD do not coordinate, face an income gap. How these two programs interact is a design decision that affects real employee financial security and is worth reviewing explicitly.

A Note on Maternity and Parental Leave

Nationally, 68% of employers offer dedicated maternity leave beyond what statutory short-term disability provides. 32% do not. That statistic is at the national level and covers all employer sizes and industries. The variation beneath that headline number is significant: duration of paid leave, how disability income is structured, whether employers top off the disability benefit to approach full salary replacement, bonding leave for non-birth parents, and adoption leave policies all vary widely. These dimensions are among the most actively discussed benefits in today’s candidate conversations and are closely tracked by employees considering family formation.

Part 2 of this series will go deep on maternity and parental leave. We will cover average paid leave duration by industry, how short-term disability interacts with maternity leave, what topping off disability means and how common it is, paternity and non-birth-parent bonding leave benchmarks, and adoption leave trends. If your organization is actively recruiting in competitive talent markets or is thinking through a parental leave update ahead of open enrollment, that post is worth reading closely.

Leave as a Competitive Differentiator: How to Use It, How to Talk About It

Leave benefits are one of the most emotionally resonant elements of an employee’s relationship with their employer. They represent how an organization actually treats its people when life happens: when someone is sick, when a child is born, when a family member needs care, or when an employee simply needs time to recharge. Employees who feel their leave program is generous are more likely to stay. Employees who feel it is stingy are more likely to leave, and more likely to say so in exit interviews and public reviews.

The challenge for most employers is that they do not know how their leave program actually compares. They know their own policy, but they do not know whether their vacation accrual schedule, their holiday count, their sick leave carryover rules, and their flexibility arrangements are above market, at market, or below market against the specific employers competing for the same candidates. Without that context, it is impossible to talk credibly about leave as a differentiator or to address an employee’s complaint about time off with anything more than a defensive response.

The next time an employee raises a concern about paid time off, or a candidate asks how your leave program compares, you should be able to answer with data. Not a general impression that your program is competitive, but a specific, benchmarked answer: our employees at five years of tenure receive 17.6 days of paid time off, which is above the national average for employers in our industry and size band. That answer requires knowing where you stand, and knowing where you stand requires a benchmark built from employers who actually look like you, not a national average that flattens the variation that matters.

Strong leave programs are also an underused marketing asset. Employers who score at Market Leading or above in the Mployer Leave pillar have a specific, documented, independently verified statement to make in offer letters, careers pages, and job postings: our leave program has been rated above market against employers in our industry, region, and size. That is a recruiting signal most employers are not making, because most employers have never taken the step of finding out whether they could make it.

See how your leave program compares to your custom cohort at MployerAdvisor.com. Part 2 on maternity and parental leave is coming soon.

Sources

Mployer Insights, 2026 Benefits State of the Union: Leave & Workplace Flexibility. Source: Mployer Insights analysis of 50,000+ employer benefit plans.

Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. Section 2601 et seq. Applies to employers with 50+ employees within 75 miles.

U.S. Department of Labor: Federal holidays apply to federal government employees; private employers have no federal obligation to provide paid holidays.

State paid family and medical leave programs: California (CFRA/SDI), New York (NY PFL), New Jersey (NJFLA), Washington (WA PFML), Massachusetts (MAPFML), Oregon (OPFML), Colorado (FAMLI), Connecticut (CTFMLA), and others.

Employee Benefits
ERISA Litigation Is Rising - Every Benefits Decision Maker Should Understand Why
The Employee Retirement Income Security Act of 1974, known as ERISA, was enacted to protect employees from the mismanagement of benefits promised to them. It does that by imposing fiduciary duties on anyone who exercises discretionary authority over a benefit plan or its assets, from benefits committee members and HR leaders to the brokers and consultants who advise them.
Author:

What Every Benefits Decision Maker Needs to Know

If you sit on a benefits committee, approve vendor contracts, set plan design, or sign off on employee benefit programs, you are a fiduciary under ERISA. That responsibility comes with real legal exposure, and the litigation environment surrounding it has grown substantially over the past decade. The Consolidated Appropriations Act of 2021 added new teeth to this exposure by requiring health insurance brokers and consultants to disclose all direct and indirect compensation they receive in connection with employer health plans. That disclosure requirement has become a direct underpinning of a new and expanding wave of ERISA lawsuits, as plaintiff firms use disclosed compensation data to allege that employers failed to monitor whether their brokers were acting in the plan’s interest or their own, including in voluntary benefit programs where broker commissions are now under direct scrutiny. Understanding that environment is not a reason for alarm. It is a strong reason to ensure your process is documented, your decisions are benchmarked, and your programs are structured in a way that reflects the care the law requires.

The Employee Retirement Income Security Act of 1974, known as ERISA, was enacted to protect employees from the mismanagement of benefits promised to them. It does that by imposing fiduciary duties on anyone who exercises discretionary authority over a benefit plan or its assets, from benefits committee members and HR leaders to the brokers and consultants who advise them.

This post explains who is at risk, what the key legal theories are, and where this is heading.

Defined contribution plans still drive the majority of ERISA class actions, representing 63% of the 155 cases filed in 2025, tracked by Encore Fiduciary in partnership with the Dorsey & Whitney law firm. But health plan cases are the fastest-growing category, accounting for 25% of all filings in 2025. That share reflects the direct impact of the CAA’s disclosure requirements and the growing sophistication of plaintiff firms in applying ERISA fiduciary standards to health plan administration. Annual excessive-fee and imprudent-investment filings remain elevated, with 2025 among the busiest years on record at 94 cases, and the trajectory since 2020 reflects a litigation environment that has become structurally elevated, not cyclical.

Who Bears Fiduciary Responsibility

ERISA fiduciary status is not limited to the HR department or the plan administrator on the plan document. Anyone who exercises discretionary authority over a benefit plan, controls plan assets, or provides investment advice for a fee can be a fiduciary under ERISA. In practice, that includes:

  • Benefits committee members who review and approve plan design
  • CFOs and finance leaders who approve vendor contracts and fee arrangements
  • CHROs who set the parameters of health and welfare plans
  • Brokers and consultants who exercise discretionary influence over plan decisions
  • Investment committee members who select and monitor 401(k) investment options

The standard that applies is the prudent expert standard under ERISA Section 404(a)(1)(B): decisions must reflect the care, skill, and diligence of a person familiar with such matters, acting in the sole interest of plan participants. Courts do not evaluate fiduciary duty by asking whether the outcome was good. They ask whether the process was sound. Process is the protection.

How This Litigation Actually Works

Most benefits decision makers are surprised to learn how these cases get started. Plaintiff law firms do not wait for disgruntled employees to call. They use publicly available Form 5500 annual filings, which ERISA plans must submit to the Department of Labor, to screen for plan characteristics that have historically generated successful claims. Once a target is identified, the firm recruits a plan participant to serve as the named plaintiff in a class action, frequently through outreach to current or former employees. That participant’s role is to provide legal standing, not to describe a personal grievance. The firm files the complaint, and the employer is now in litigation that can cost millions to defend regardless of the merits.

This explains a pattern that otherwise seems contradictory. Recordkeeping fees and investment fees for large 401(k) plans have declined steadily for more than a decade, yet fiduciary litigation has accelerated over that same period. Plaintiff firms have found that surviving the early stage of litigation generates settlement leverage, and their business model does not require the underlying fees to actually be excessive. In our internal data, over the past five years there have been more than 200 settlements of excessive fee and imprudent investment lawsuits totaling more than $1.3 billion. Plaintiff firms typically receive approximately one-third of those settlements. Individual plan participants, by contrast, have received an average of $55 to $70 each per settlement according to analysis from the Davis & Harman law firm.

Excessive Vendor Fees Drive the Surge

Excessive-fee allegations jumped 64% in a single year, from 45 cases in 2024 to 74 in 2025, outpacing every other claim category. Forfeiture allegations rose from 29 to 48. Imprudent investment claims grew from 48 to 53. Across all three categories, the trend is consistently upward. The right panel of the chart below shows what that volume translates to in settlement dollars: total reported settlements peaked at $352.8 million in 2023 and have remained elevated, with $151.9 million settled in 2025 alone. Watchful, deliberate fee benchmarking is the plan sponsor’s strongest defense against all three of these claim types, because each ultimately turns on whether the fiduciary made a documented, reasonable, and informed decision about what the plan was paying and to whom.

One category deserves particular attention for employers running wellness programs: tobacco surcharge claims. Plans that impose premium surcharges on tobacco users must offer a reasonable alternative standard that allows employees to earn or recoup the full reward, typically a tobacco cessation program. Nearly 50 tobacco surcharge lawsuits were filed in 2024 and 2025, with multiple settlements reaching close to $5 million each. Courts have ruled in favor of plaintiffs in the large majority of motions to dismiss decided so far. This is one of the highest-frequency, most correctable compliance risks in health plan design today.

The Main Legal Theories: A Brief Overview

In defined contribution plans, the dominant allegations are excessive recordkeeping or investment fees, imprudent investment selection, and forfeiture allocation disputes. Health plan litigation has grown significantly since the CAA’s fee disclosure requirements took effect, with the most active categories now being prescription drug cost claims, tobacco surcharge violations, ghost network failures, and, most recently, voluntary benefit broker compensation arrangements where undisclosed or unreasonable commissions are now being scrutinized directly under ERISA Section 406.

Cases That Illustrate Where the Exposure Lives

These cases show the range of conduct generating ERISA fiduciary liability claims across both retirement and health plans, and why the risk is expanding well beyond the traditional 401(k) space.

  • Kraft Heinz Co. v. Aetna Life Insurance Co. (filed June 2023). Kraft Heinz sued its TPA for breaching ERISA fiduciary duties in managing its self-funded health plan, alleging over $1.3 million in duplicate and improper claims paid, cross-plan offsetting using plan assets, and blocking Kraft Heinz from accessing its own claims data. The case established that employers bear fiduciary responsibility for monitoring their TPAs, not just their retirement plan recordkeepers.
  • Lewandowski v. Johnson & Johnson (filed February 2024). A J&J employee filed a class action alleging the company and its Benefits Committee failed to monitor its PBM, Express Scripts, resulting in the plan paying nearly 500% more for certain drugs than pharmacies paid to acquire them. J&J allegedly never conducted a competitive RFP for PBM services. The case established PBM oversight as an active fiduciary obligation for self-funded health plan sponsors.
  • Navarro v. Wells Fargo (filed July 2024). Similar PBM allegations added a prohibited transaction claim under Cunningham v. Cornell, alleging Wells Fargo paid over $25 million in administrative fees to Express Scripts that were unreasonable compared to fees paid by similarly sized plans. The parallel cases against J&J and Wells Fargo together define PBM benchmarking as a fiduciary requirement.
  • Hecht v. Cigna (filed 2024, settled October 2025 for approximately $6 million). Cigna was sued for maintaining a ghost network, listing out-of-network providers as in-network. A court ruled in February 2025 that repeated and systematic failures to maintain accurate provider directories were sufficient to allege a breach of ERISA’s duties of loyalty and prudence, extending fiduciary obligations into network administration for the first time.
  • Voluntary Benefit Class Actions (filed December 2025). Four class action lawsuits filed in December 2025 targeted voluntary benefit programs, naming both employers and their benefits consultants as defendants. The complaints alleged the consultants acted as fiduciaries and engaged in self-dealing through undisclosed commissions. All four complaints alleged the employers failed to comply with the DOL voluntary plan safe harbor, in part because they filed Form 5500s for the plans, directly citing the CAA’s compensation disclosure framework as the basis for the fiduciary theory.
  • Singh v. Capital One Financial Corporation (settled 2025 for nearly $10 million). Capital One settled a forfeiture allocation case for one of the largest forfeiture-specific settlements on record, even after the DOL filed an amicus brief siding with the defendant. The settlement demonstrates that even legally contested theories can generate significant financial exposure before appellate courts reach a final resolution.

What Well-Prepared Employers Are Doing Differently

The employers best positioned in this litigation environment treat fiduciary process as an ongoing discipline. The specific practices courts and regulators look for are consistent across plan types.

  • Document every significant benefits decision. The legal standard is evaluated based on process, not outcome. A documented record of how a decision was made, what alternatives were considered, and why the chosen approach was reasonable is the primary evidence that prudence was exercised.
  • Benchmark regularly against a real comparator group. The duty of prudence and the cost reasonableness standard both require that fiduciary decisions be defensible relative to what was available in the market. A benchmark built from employers matching your size, industry, and region is direct evidence your costs fall within a reasonable range.
  • Monitor your TPAs, PBMs, and carriers, not just your recordkeeper. The Kraft Heinz and J&J cases make clear that health plan fiduciary oversight extends to the vendors administering your plan. Conduct periodic RFPs, review service agreements, and confirm you have access to your own claims data.
  • Review broker and consultant compensation under the CAA. The compensation disclosure requirements of the CAA are now being used directly in litigation. Review what your brokers earn on every line of coverage, confirm those arrangements are reasonable and disclosed, and document that review.
  • Review your voluntary programs against the DOL safe harbor. Test each voluntary benefit program against all four conditions: no employer contribution, fully voluntary participation, limited employer administrative involvement, and no employer compensation beyond reasonable reimbursement.
  • Check your tobacco surcharge program. If your wellness program imposes a premium surcharge on tobacco users, confirm it offers a reasonable alternative standard employees can realistically use. Non-compliance has proven expensive across nearly every case that has reached a ruling.

How Mployer Insights+ Supports Your Fiduciary Process

One of the most direct steps a benefits decision maker can take to strengthen their fiduciary position is to run an independent, third-party benchmarking review of their plan on a regular basis. This is what Mployer Insights+ is built to produce.

Completing an Insights+ review generates documentation that speaks to three of the core ERISA fiduciary obligations. On the prudent expert standard under Section 404(a)(1)(B), the report demonstrates that an independent, structured benchmarking analysis was conducted across all plan components. On cost reasonableness under Section 404(a)(1)(A), the cohort comparison against employers matched by size, region, and industry creates a data-driven, documented basis for evaluating whether plan costs fall within a reasonable market range. On the duty to monitor under Section 404(a)(1), running the review annually establishes a consistent cadence of evaluation with a written output each cycle.

Because Mployer has no carrier relationship, broker relationship, or financial arrangement with the plan being evaluated, the report reflects an objective assessment free of commercial bias. That independence speaks directly to the implicit requirement in the prudent expert standard that fiduciary analysis be conducted free of conflicts of interest, and it distinguishes the Insights+ review from a benchmark produced by a broker from their own book of business.

None of this is a substitute for legal advice, and employers should work with qualified ERISA counsel to confirm all applicable obligations are identified and satisfied. But in a litigation environment where 155 fiduciary class action lawsuits were filed in a single year and the scope is actively expanding into health plans and voluntary benefits, a documented annual benchmark is one of the most practical and defensible steps a benefits team can take.

See how your benefits package compares to your custom cohort at MployerAdvisor.com.

Sources

Encore Fiduciary / Dorsey & Whitney LLP: ERISA Fiduciary Litigation in 2025. 155 class lawsuits filed in 2025. Justin Bove, Chief Revenue Officer, Encore Fiduciary.

Mployer Insights analysis of public ERISA class-action filings and settlements, 2016-2025.

Davis & Harman LLP: 2025 Underperformance and Excessive Fee Settlement Survey. Average individual participant recovery $55-$70.

Consolidated Appropriations Act of 2021 (CAA), Section 202, broker/consultant compensation disclosure requirements for group health plans.

Kraft Heinz Co. Employee Benefits Administration Bd. v. Aetna Life Ins. Co., No. 2:23-cv-00317 (E.D. Tex., filed June 30, 2023).

Lewandowski v. Johnson & Johnson, No. 3:24-cv-00671 (D.N.J., filed February 5, 2024).

Navarro v. Wells Fargo & Co., No. 0:24-cv-3043 (D. Minn., filed July 30, 2024).

Hecht v. Cigna, filed 2024; fiduciary duty claim survived motion to dismiss February 2025; settled approximately $6 million October 2025.

Singh v. Capital One Financial Corporation, PACER Docket 1:24-cv-08538; settled approximately $10 million 2025.

Cunningham v. Cornell University, 604 U.S. 693 (2025).

Hughes v. Northwestern University, 595 U.S. ___ (2022).

ERISA Section 404, 29 U.S.C. Section 1104. DOL Voluntary Plan Safe Harbor, 29 C.F.R. Section 2510.3-1(j).

HIPAA Nondiscrimination Rules for Wellness Programs, 26 C.F.R. Section 54.9802-1.