The issue of whether CalSavers is preempted by ERISA is being tracked by the Justice Department as it decides whether to participate in the litigation challenging the program.

CalSavers, California’s mandated payroll deduction program for certain California employees who do not have access to retirement plans at work became effective July 1, 2019.  However, still pending is a lawsuit by the Howard Jarvis Taxpayers Association to invalidate the law as preempted by ERISA.  See CalSavers Moves to Dismiss Amended Complaint Challenging Program under ERISA.  A motion to dismiss the amended complaint is awaiting a hearing.  However, interestingly, on August 2, 2019, the United States Department of Justice filed a Notice Concerning Potential Participation requesting that the court defer ruling on the motion in order to permit the United States an opportunity to determine whether it will participate in the litigation.  The Justice Department states in the motion that the United States may have an interest in providing its views with respect to the ERISA preemption issue and is actively considering whether to participate.  Federal law permits the Attorney General of the United States to send any officer of the Justice Department to attend to the interests of the United States in a suit pending in court.  The process for deciding to participate takes several weeks, the motion states the United States will update the court on the status of its consideration by the end of August.

Of course, the motion does not indicate whether the United States has a position on whether the law is preempted by ERISA.