Nonetheless, a large number of America's private-sector workers are not currently covered by a plan and many who are do not have adequate savings in the plans in which they participate. 

It is hard to pinpoint a single or primary reason for this, but it certainly detracts from ERISA's overall success.  

There are some possible culprits in this disappointing aspect of ERISA 40 years after enactment.

ERISA and the continuing statutory changes and regulatory rules since its enactment have imposed a labyrinthine complexity on maintaining plans that is beyond the capacity of many employers to assume. 

Moreover, some of the purported participant protective provisions may be an overreach that have hamstrung the flexibility of sponsors, resulted in liability for overly technical alleged violations, imposed sometimes burdensome and costly requirements that serve no apparently necessary purpose, and have likely impeded the adoption or maintenance of plans for many employers. 

Certainly, the result of this can be seen with the enormous reduction in DB plan coverage over the last 30 years, due in part to these issues as well as the accounting rules and the burden and volatility of the cash funding obligations. 

Although ERISA has largely assured that pension commitments will be kept, there are substantially fewer DB plans and more employees now rely on DB alternatives such as 401(k) plans (with their natural and inherent insecurity which offset some of their many positive features) to provide the bulk of their retirement income. 

Additionally, it took a decade too long for Congress to enact the legislative authorization for hybrid plans under the Pension Protection Act of 2006, and Treasury and the IRS have still not finalized some of the key regulations for such plans eight years after Congress acted. 

This legislative and regulatory delay has no doubt resulted in the freezing of more plans than would otherwise be the case and the shifting of retirement benefits to 401(k) plans. 

Although 401(k) plans can provide workers with substantial retirement benefits, their basic design and operation require more involvement and attention by participants in order to achieve retirement security. 

On the other hand, 401(k) plans provide participants with a wide array of risk assumption choices, portability, and the ability to customize retirement security for the needs of each individual.   

And with changes in recent years either in the statute or the regulations, employers have been able to enhance 401(k) retirement security for participants with automatic enrollment, automatic contribution increases, default investments, and enhanced fee and cost disclosures.

In addition to the concerns reflected above regarding ERISA and its various amendments over the years, the significant increase in PBGC premiums (oftentimes generated by exaggerated messages of doom from the PBGC itself) and the changes to the funding requirements, have exacerbated sponsor funding volatility and concerns. 

This is reflected in the imposition of spot type funding requirements under the PPA (and related changes) based on short-term asset values and interest rates (to some measure temporarily ameliorated recently by Congress under the MAP-21 funding provisions and their recent extension under the recently enacted highway funding bill). 

Pensions are long-term obligations and should be funded using long-term external market conditions and assumptions.   

And, add to the PBGC premium and funding developments, the practical prohibition, adopted in the late 1980s, of plan reversions and the result has been to discourage employers from maintaining DB plans and providing for some enhanced plan security by making "excess" contributions in good business times.   

ERISA has successfully fulfilled some of its key objectives. It has certainly resulted in enhanced security and fairness for those covered by retirement and other benefit plans. However, over the last 40 years, there has been a significant contraction of the DB universe and a large number of working Americans remain without access to an employer-sponsored retirement plan. 

ERISA itself cannot take all the blame for the decrease in DB coverage, but it certainly should share some of it. Some of the ERISA rules and regulations are too burdensome and too costly without good reason. 

The scorecard, thus, remains mixed. ERISA has delivered on some of its promise, but much still remains unfulfilled.