Gig Workers and ERISA: What You Need to Know Now

The gig economy is exploding and more employers than ever are relying on independent contractors as an important part of their workforce.

Is anything new or different when it comes to pitfalls on employer-provided benefits for these gig workers?

We’ll cover:

  • Determining eligibility for employer-sponsored benefit plans
  • What independent contractor status is – and is not
  • ERISA plan status and restrictions
  • How to avoid ERISA plan status for a voluntary benefit
  • Legal consequences – enforcement, benefits claims and litigation
  • Trends in benefits for the gig economy – portable benefits, state programs and technology

…and we’ll answer your questions!


Michelle Capezza

Member of the Firm, Employee Benefits & Executive Compensation and Health Care & Life Sciences practices
Epstein Becker Green

Michelle Capezza is a Member of Epstein Becker Green in the Employee Benefits & Executive Compensation and Health Care & Life Sciences practices, and co-leads the firm's Technology, Media, and Telecommunications (TMT) service team. She practices law in the areas of ERISA, employee benefits, and executive compensation. For more than 20 years, Ms. Capezza has represented a range of clients in these types of matters, from Fortune 500 companies and multinational corporations to nonprofit entities, medium-sized businesses, and individual executives. Ms. Capezza provides counsel on qualified retirement plans, ERISA fiduciary responsibilities, nonqualified deferred compensation arrangements, employee welfare benefit plans, equity/incentive programs, and benefits issues that arise in corporate transactions, across various industries, including financial services, health care, technology, media, telecommunications, hospitality, and retail. In addition, Ms. Capezza advises clients on the implications of increased automation and artificial intelligence in the workplace and the related employee benefits and compensation considerations for a changing workforce.

Ms. Capezza was recommended for her work in employee benefits and executive compensation on a national level in The Legal 500 United States (2013, 2014, 2016 to 2018). She was selected to the New York Metro Super Lawyers (2014 to 2017) and Top Women lists (2014 to 2016), the New York Metro Rising Stars list (2011), and the New Jersey Rising Stars list (2009) in the area of Employee Benefits. Ms. Capezza received the 2012 Excellence in Achievement Award from the Peter W. Rodino, Jr. Society at Seton Hall University School of Law, for her commitment to excellence and compassionate service in the field of law. Ms. Capezza has also been recognized in Marquis Who's Who in America, American Law, and Emerging Leaders.

Often partnering with clients' in-house attorneys, human resources professionals, and benefit plan service providers, Ms. Capezza counsels clients with respect to all aspects of employee benefits law, including:

  • Design, administration, compliance, and termination of: qualified plans (such as 401(k), profit-sharing, and pension plans), nonqualified deferred compensation arrangements (including top hat plans and SERPs), employee welfare benefit plans (including group health plans, cafeteria plans, wellness programs, and COBRA requirements), equity/incentive compensation programs (such as stock option, restricted stock, phantom stock, and executive bonus programs), severance plans, and other benefits
  • Employee benefits issues that arise in connection with merger and acquisition and joint venture transactions (including review of transaction documents, treatment of equity awards, change-in-control and golden parachute issues, plan terminations, severance, COBRA, multi-employer plan withdrawal liability, and PBGC issues)
  • Review and negotiation of employment, severance, and release agreements
  • Review and negotiation of various types of vendor, trust, investment management, and service provider agreements
  • Design and review of plan participant communications
  • Fiduciary responsibility issues under ERISA (including providing advice on governance, fiduciary training, and development of best practices to plan sponsors, trustees, and Investment and Administrative Committees)
  • Compliance with ERISA, the Affordable Care Act, the Internal Revenue Code (including Sections 409A, 280G, and 162(m)), and other laws affecting employee benefit plans
  • Representation of clients before the Department of Labor, Internal Revenue Service, and other government agencies (including with regard to the DOL Voluntary Fiduciary Correction Program and the IRS Employee Plans Compliance Resolution System)

With regard to the TMT industry, Ms. Capezza and the firm's multidisciplinary TMT service team counsel companies regarding workforce and workplace management, employee benefits, immigration, and litigation matters. By combining their individual areas of experience and understanding their clients' businesses, the members of the team tailor their legal services to the particular needs of their clients, in a cost-efficient manner. Ms. Capezza also contributes to and manages the Technology Employment Law blog, which provides insight and commentary on legal issues facing today's technology companies. She is an Advisory Board member of the New Jersey Technology Council and an NJTC Technology Ambassador.

Prior to joining the firm, Ms. Capezza practiced employee benefits law in both New York and New Jersey with prominent law firms ranked in The Am Law 100 and 200. She also served as corporate in-house counsel to financial institutions with businesses in the retirement plan and equity award plan recordkeeping industry. Earlier in her career, Ms. Capezza served as a judicial law clerk in the Superior Court of New Jersey (Civil Part) and worked on Wall Street in the brokerage industry in the area of corporate services and retirement product development. Her combination of law firm, corporate in-house legal, and business experience allows her to provide clients with understandable, practical advice with regard to technical issues, in order to attain their business goals.

In addition to her work at the firm, Ms. Capezza is an adjunct faculty member of the Seton Hall University School of Law, where she has taught a course in Corporate Transactional skills (a practical skills course designed to prepare law students for transactional practice following graduation). In addition, Ms. Capezza is Vice President of the Board of Trustees of The First American Inn of Transactional Counsel (American Inns of Court), an organization devoted to promoting professionalism, civility, ethics, and excellent legal skills at the American bench and bar. She is also a frequent national speaker on a variety of employee benefits and executive compensation topics including health reform, financial regulatory reform, fiduciary issues under ERISA, the future of employee benefits, and overall trends in these and other areas, and she has been a featured faculty speaker for continuing education programs through Strafford, Lawline, Clear Law Institute, and The Knowledge Congress. She has published numerous articles in various publications such as The Employee Benefit Plan Review, The BNA Health Insurance Report, The BNA Pension & Benefits Reporter, The BNA Health Law Reporter,The Metropolitan Corporate Counsel, Confero, and TechNews.

Ms. Capezza's personal interests are vast and varied in the areas of music, the arts, and travel. She has performed as a lead singer of a bluegrass band at the Station Inn in Nashville, Tennessee, through her bluegrass music studies. She has also performed the national anthem at several drag racing competitions. She enjoys playing piano and guitar, and designing handmade jewelry.


  • Seton Hall University School of Law (J.D., 1996)
    • Member and Assistant Notes and Comments Editor, Seton Hall Law Review, and Jessup International Moot Court Team
  • Rutgers University (B.A., 1993)
    • with High Honors & Phi Beta Kappa

Court Admissions

  • Supreme Court of the United States
  • S. District Court, District of New Jersey

Bar Admissions

  • New Jersey
  • New York

Practice Areas

  • Employee Benefits and Executive Compensation
  • Mergers, Acquisitions & Divestitures


  • Artificial Intelligence
  • Financial Services
  • Health Care and Life Sciences Industry
  • Hospitality
  • Retail
  • Technology, Media & Telecommunications


  • Alumni Council, Seton Hall University School of Law
  • American Bar Association
  • American Health Lawyers Association
  • Board of Trustees, The First American Inn of Transactional Counsel (American Inns of Court)
  • The Global Leaders
  • National Association of Professional Women
  • National Association of Women Lawyers
  • New Jersey Chapter of the Worldwide Employee Benefits Network - Steering Committee (2008 - 2010)
  • New Jersey Technology Council
  • The Womensphere Global Network (Founding Member)

Gretchen Harders

Member of the Firm - Employee Benefits & Executive Compensation Practice
Epstein Becker Green

Gretchen Harders is a Member of the Firm in the Employee Benefits and Executive Compensation practice, in the firm's New York office.

Ms. Harders' practice focuses on all aspects of executive compensation and employee benefits law. Ms. Harders counsels a broad range of clients on executive compensation and employee benefit issues, tax-qualified and non-qualified plans, 401(k) plans, the Patient Protection and Affordable Care Act, deferred compensation, executive incentive compensation plans, executive employment and severance agreements, Section 409A compliance, equity-based compensation plans, multiemployer plans and health and welfare plans and trusts.

Ms. Harders:

  • Advises corporate clients on employee benefits compliance matters, tax-qualified pension plan compliance, defined benefit plans, Section 401(k) plans, multiemployer plan funding and administration, health and welfare benefit plans and fringe benefit plans
  • Represents corporate clients and health care providers on health and welfare benefit plans, health care products and the impact of the Patient Protection and Affordable Care Act
  • Advises both corporate and individual clients on executive compensation issues, including the design of executive employment contracts, incentive compensation arrangements, stock option plans and severance agreements, with a concentration in cross-border executive compensation and the Dodd-Frank Wall Street Reform Act
  • Represents tax-exempt and not-for-profit institutions with respect to pension plans, executive compensation, deferred compensation and employee benefits compliance matters

Ms. Harders is a frequent speaker on various employee benefit issues and developments and has authored articles on various topics of ERISA and employee benefits law, including the Patient Protection and Affordable Care Act.

Ms. Harders has been selected by her peers for inclusion in The Best Lawyers in America© (2014 to 2018) in the field of Employee Benefits (ERISA) Law. She was also recommended by The Legal 500 United States (2013, 2014, 2018), in the category of Employee Benefits, Executive Compensation and Retirement Plans: Design, and named to the New York Metro Super Lawyerslist (2013 to 2017) in the area of Employee Benefits.


  • Chapter 24, "Claims, Disputes, and Settlements," Section 409A Handbook(BNA Books, Fall 2010).
  • "Surprises for Publicly-Traded Multinational Employers: Complying with Section 409A of the U.S. Internal Revenue Code," International Legal News, Volume 5, Issue 2 (Aug. 15, 2008).
  • "Applying new US tax rules on deferred compensation to cross border arrangements," PLC Cross Border Employee and Labour Benefits Handbook 2007/8, with Howard Pianko (Sept. 13, 2007).
  • "Cross-border employment contracts — practical considerations for the multinational employer," PLC Cross Border Employee and Labour Benefits Handbook 2006/7, with Howard Pianko (Aug. 10, 2006).
  • "Employer Stock Funds in Corporate Transactions: Tax and ERISA Considerations," BNA Tax Management Compensation Planning Journal (Feb. 2004).
  • "Employer Stock Funds in Corporate Transactions: Federal Securities Law Considerations," BNA Tax Management Compensation Planning Journal (April 2004).


  • University of Minnesota Law School (J.D., cum laude, 1997)
  • University of Chicago (B.A., 1989)

Bar Admissions

  • New York

Practice Areas

  • Employee Benefits and Executive Compensation
  • Mergers, Acquisitions & Divestitures


  • Health Care and Life Sciences Industry


  • American Bar Association, Employee Benefits Committee, Tax Section
  • New York State Bar Association, Employee Benefits Committee, Tax Section