that where practicable and appropriate the existing benefit plans of Old Beatrice and its subsidiaries would be continued.
From the date of the merger, New Beatrice made quarterly Emeritus Benefits payments to each plaintiff. In October 1987, when Old Beatrice was liquidated, New Beatrice made arrangements to continue plaintiffs' Emeritus Benefits payments by means of an annuity. However, although the amount of the annual stipend for incumbent directors of New Beatrice has increased since October, 1987, New Beatrice has frozen the amount of plaintiffs' Emeritus Benefits at the 1986 level. On or about June 7, 1990, New Beatrice and ConAgra entered into a merger agreement under which ConAgra or a wholly-owned subsidiary of ConAgra was to assume New Beatrice's liability for the Emeritus Benefits Plan. In response to the freezing of their benefit amounts, the plaintiffs have brought this suit against New Beatrice and ConAgra. They contend that under ERISA and the common law they are entitled to benefits which equal those received by incumbent directors. Consequently, they seek a declaration of entitlement to equal benefits, as well as compensatory damages, prejudgment interest and costs.
The defendants, New Beatrice and ConAgra, move for the dismissal of the plaintiffs' ERISA claim on the ground that the Emeritus Benefits Plan is not an "employee pension benefits plan" under ERISA. It is not such a plan, they argue, because directors are not employees for purposes of ERISA. The question of whether directors, in their capacity as directors, are employees under ERISA is one of first impression. The issue in this case is further complicated by the terms of the benefits plan in question. Although the Plan's title suggests that it is solely for directors, its terms are such that an individual could do much of what was necessary to earn the right to participate by working as an employee.
In order to determine whether the plaintiffs are in fact employees for purposes of ERISA, it will therefore first be necessary to consider the question of whether directors, in their capacity as directors, are employees under ERISA. As explained below, appellate courts have approached the general question of whether individuals are employees under ERISA in two different ways. The first approach, and by far the more widely accepted, has been to base the decision on whether the individual in question would be considered an employee at common law. The second, less favored, approach, is to examine the statute in question, and consider whether the inclusion of the disputed category of persons would effectuate the "declared policy and purposes" of the statue. As explained below, even under the more inclusive "declared policy and purposes" test, directors would not be employees for purposes of ERISA.
Most of the appellate decisions which address the general question of how the term "employee" is to be interpreted for purposes of ERISA concern independent contractors. Because independent contractors arguably are not as closely affiliated with the business against which they file an ERISA suit as directors are, it is helpful to examine Department of Labor regulations and appellate decisions concerning partners, who are as closely affiliated as directors and therefore less likely to require the protections of ERISA. As explained below, Department of Labor regulations do not extend ERISA protection to partners, and the appellate courts have also held that partners are not employees for purposes of ERISA. These considerations, as well as the decision of the circuit courts not to extend the protection of the broadly-applied anti-discrimination acts to partners and directors, assist this court in concluding, consistent with the common law, that for purposes of ERISA directors are not employees.
After determining the status of directors under ERISA, it will then be necessary to consider whether the plaintiffs in the case before us were in fact directors. It is well established in the Seventh Circuit that the mere designation "director" is not sufficient to make the object of the designation a director for purposes of legal analysis. Here, the plaintiffs assert that although they were called "directors," they in fact performed so many employee-like functions that they actually were, in fact, employees. As explained below, the Court concludes that the plaintiffs have made assertions which are sufficient to prevent their claim from being dismissed. However, this ruling does not definitely resolve a number of important questions concerning the benefits received by, and the actions of, the plaintiffs during their tenure as directors.
A. The Status of Directors Under Erisa
Under ERISA, an "employee pension benefits plan" is defined as
any plan, fund or program which was heretofore or is hereafter established or maintained by an employer . . . to the extent that by its express terms or as a result of surrounding circumstances such plan, fund or program (i) provides retirement income to employees, or (ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond.
29 U.S.C. § 1002(2). However, ERISA provides "little guidance concerning the interpretation to be given the term 'employee.'" Darden v. Nationwide Mut. Ins. Co., 796 F.2d 701, 704 (4th Cir. 1986). The text of the statute cryptically defines "employee" as "any individual employed by an employer," 29 U.S.C. § 1002(6).
As the defendants argue, it is hornbook law that a director is not an employee: "A director of a corporation is not, merely by virtue of his position, its employee." 18B Am. Jur. 2d § 1346 at 257 (1985) (footnote omitted). See Georgia Casualty & Surety Co. v. Seaboard Surety Co., 210 F. Supp. 644, 651 (N.D. Ga. 1962), aff'd, 327 F.2d 666 (5th Cir. 1964). This principle is based on a common-law test for employment status. However, this does not settle the matter. It is a subject of dispute among the circuits to what extent the common-law meaning of "employee" should govern in ERISA cases, and to what extent the common-law meaning might conflict with the intentions of Congress in enacting the statute.
1. The Common-law Interpretation of "Employee"
As noted above, the question of whether directors are employees for purposes of ERISA is one of first impression. However, the question of whether independent contractors are employees for purposes of ERISA has been addressed by a number of appellate courts. A majority of these appellate courts have favored applying a common-law test of employment status. Although this lawsuit does not concern independent contractors, the cases discussed below are helpful in determining the extent to which the courts have chosen to follow the common law in deciding whether an individual is an employee under ERISA.
In Holt v. Winpisinger, 258 App. D.C. 343, 811 F.2d 1532 (D.C. Cir. 1987), the plaintiff brought suit under ERISA seeking pension benefits for her years of clerical work at a union office. The district court found that the plaintiff had been employed as an independent contractor, not as an employee, for a crucial portion of her time at the union, and denied her ERISA claim. The court of appeals reversed, and in so doing, discussed the definition of "employee" under ERISA. It found that Congress intended to apply a common-law test of employment status in ERISA cases:
ERISA defines "employee" merely as "any individual employed by an employer." The statutory definition thus provides little or no guidance when the question is whether a party performing services pursuant to a particular work arrangement is an employee. However, both parties agree and the District Court held that one must look to common-law rules of agency to determine employee status. In this approach we fully concur.
Id. at 1538 (footnotes omitted). The court found both statutory and regulatory support for its decision:
The absence of a comprehensive definition of "employee" in ERISA and other features of that legislation indicate plainly enough that Congress intended the Secretary of the Treasury and the Secretary of Labor, who were administrators of various ERISA provisions, to continue their practice of defining "employee" in terms of common-law agency principles. See NLRB v. United Ins. Co., 390 U.S. 254, 256, 88 S. Ct. 988, 989-90, 19 L. Ed. 2d 1083, 1086 (1968) (Congress intended common-law agency principles to apply when the effort is to distinguish employees from independent contractors under the National Labor Relations Act). . . . Regulations issued by the Secretary of the Treasury to implement the vesting provisions of 26 U.S.C. § 411 (1982) also apply to minimum vesting under ERISA, 29 U.S.C. § 1202(c) (1982); H.R.Conf.Rep. No. 93-1280, . . . reprinted in  U.S.Code Cong. & Ad.News 5050 n. 1. Under those Treasury regulations, "employee" is defined in terms of the common law. 26 C.F.R. § 31.3121(d)-1(c)(1) (1986) ("every individual is an employee if under the usual common law rules the relationship between him and the person for whom he performs services is the legal relationship of employer and employee").