The employee benefits picture, at least for many plan participants and some plan sponsors, is a scary and bleak one. The number of workers with pension coverage is declining, health insurance rates are rising much faster than the rate of inflation, and the number of uninsured continues to rise as well. The decline in union density, the recent boost given by the U.S. Supreme Court to Any Willing Provider ("AWP") laws, and the deluge of recent benefits-related scandals are also all part of this landscape. This Article examines each of these issues, with a focus on reforms that would increase pension and health insurance coverage rates.

The first argument is that the path toward reform will be profoundly affected by the nature of the conversation about the problems employers and employees face in trying to reach an optimal level of benefits coverage. The Article proposes the adoption of a non-emotional, non-value laden framework that takes into account the stark economic realities both parties face. The problem of declining union density and its implications for the assertion of employee bargaining power are considered next. With respect to health insurance, the Article looks at recent experience with small employer purchasing groups and makes a controversial proposal that employees be permitted to trade cash for benefits. Finally, the Article asserts that in cases of fraud and malfeasance (highlighted by recent scandals) the core problem is one of sub-optimal deterrence. The solution is an amendment to ERISA that would permit a punitive damage sanction in cases of egregious employer/plan sponsor behavior.