Golden Gate Restaurant v. City and County of San Francisco

Plaintiff Golden Gate Restaurant Association (“the Association”) challenges the employer spending requirements of the newly enacted San Francisco Health Care Security Ordinance (“the Ordinance”). The Association argues that the federal Employee Retirement Income Security Act of 1974 (“ERISA”) preempts the employer spending requirements of the Ordinance either because those requirements create a “plan” within the meaning of ERISA or because they “relate to” employers’ ERISA plans. On December 26, 2007, the district court granted the Association’s motion for summary judgment and enjoined the implementation of the employer spending requirements. Golden Gate Rest Ass’n v. City & County of San Francisco, 535 F.Supp.2d 968, 970 (N.D.Cal.2007). On December 27, 2007, Defendant City and County of San Francisco (“the City”) and Defendant-Interve-nor labor unions requested that this court stay the judgment of the district court pending appeal. In an order filed January 9, 2008, we granted the stay. Golden Gate Rest. Ass’n v. City & County of San Francisco (“Golden Gate ”), 512 F.3d 1112, 1114 (9th Cir.2008). We now reach the merits of the appeal. We hold that ERISA does not preempt the Ordinance.

I. Procedural History

In July 2006, the San Francisco Board of Supervisors unanimously passed the San Francisco Health Care Security Ordinance, and the mayor signed it into law. The Ordinance is codified at Sections 14.1 to 14.8 of the City and County of San Francisco Administrative Code. The Ordinance has two primary components: the Health Access Plan (“HAP”), and the employer spending requirements. The HAP 1 is a City-administered health care program. It went into effect in the summer of 2007. In funding the HAP, the City “prioritize[s] services for low and moderate income persons.” S.F. Admin. Code § 14.2(d) (2007). According to the City’s web page, as of August 9, 2008, 27,395 *643 persons had enrolled in the HAP. 2 Persons who already have health insurance or who live outside of San Francisco are not eligible for the HAP. Instead, such persons may be entitled to establish medical reimbursement accounts with the City. As we will explain in detail below, the Ordinance also requires all covered employers to make a certain level of health care expenditures on behalf of their covered employees. The Association does not challenge the HAP. It challenges only the employer spending requirements.

The Association filed a complaint against the City on November 8, 2006, asking the district court to declare that ERISA preempts the employer spending requirements, and seeking a permanent injunction against enforcement of the provisions of the Ordinance relating to those requirements. The San Francisco Central Labor Council, Service Employees International Union (SEIU) Local 1021, SEIU United Healthcare Workers-West, and UNITE-HERE! Local 2 (collectively, “Interve-nors”), successfully moved to intervene as defendants.

On April 2, 2007, the City deferred implementation of the employer spending requirements until January 1, 2008. On July 13, 2007, the parties filed cross-motions for summary judgment. On December 26, 2007, the district court entered judgment for the Association, concluding that ERISA preempts the employer spending requirements. See Golden Gate Rest. Ass’n, 535 F.Supp.2d at 979-80.

On December 27, 2007, the City and Intervenors asked the district court to stay its judgment pending appeal. The district court denied the motion. On January 9, 2008, this court filed a published order granting the City’s motion for a stay of the district court’s judgment pending resolution of the City’s appeal. Golden Gate, 512 F.3d at 1127. Since that date, covered employers have been required to make quarterly health care expenditures.

On February 7, 2008, the Association filed an application with Justice Kennedy, as Circuit Justice for the Ninth Circuit, for an order vacating our stay of the district court’s judgment. On February 21, after receiving the City’s response, Justice Kennedy denied the application. The United States Secretary of Labor subsequently filed an amicus brief in this court in support of the Association.

On April 17, 2008, we heard oral argument on the merits of the City’s appeal. We now reverse the judgment of the district court and remand with instructions to enter summary judgment in favor of the City and Intervenors.

II. Standard of Review

“We review de novo the district court’s grant of summary judgment and, viewing the evidence in the light most favorable to the non-moving party, determine whether there are any genuine issues of material fact for trial.” In re Syncor ERISA Litig., 516 F.3d 1095, 1100 (9th Cir.2008). “ERISA preemption is a question of law, which we also review de novo.” Elliot v. Fortis Benefits Ins. Co., 337 F.3d 1138, 1141 (9th Cir.2003).

III. The Ordinance

The Ordinance mandates that covered employers make “required health care expenditures to or on behalf of’ certain employees each quarter. S.F. Admin. Code § 14.3(a). “Covered employers” are employers engaging in business within the *644 City that have an average of at least twenty employees performing work for compensation during a quarter, and nonprofit corporations with an average of at least fifty employees performing work for compensation during a quarter. Id. § 14.1(b)(3), (11), (12). “Covered employees” are individuals who (1) work in the City, (2) work at least ten hours per week, (3) have worked for the employer for at least ninety days, and (4) are not excluded from coverage by other provisions of the Ordinance. Id. § 14.1(b)(2).

The Ordinance sets the required health care expenditure for employers based on the Ordinance’s “health care expenditure rate.” Id. §§ 14.1(b)(8), 14.3(a). For-profit employers with between twenty and ninety-nine employees and non-profit employers with fifty or more employees must make health care expenditures at a rate of $1.17 per hour. For-profit employers with one hundred or more employees must make expenditures at a rate of $1.76 per hour. See City & County of San Francisco, Office of Labor Standards Enforcement, Regulations Implementing the Employer Spending Requirement of the San Francisco Health Care Security Ordinance (“ESR”), Reg. 5.2(A) (2007). 3 Under the Ordinance, “[t]he required health care expenditure for a covered employer shall be calculated by multiplying the total number of hours paid for each of its covered employees during the quarter ... by the applicable health care expenditure rate.” S.F. Admin. Code § 14.3(a).

Regulations implementing the Ordinance specify that “[a] health care expenditure is any amount paid by a covered employer to its covered employees or to a third party on behalf of its covered employees for the purpose of providing health care services for covered employees or reimbursing the cost of such services for its covered employees.” ESR Reg. 4.1(A). A “covered employer has discretion as to the type of health care expenditure it chooses to make for its covered employees.” ESR Reg. 4.2(A). Section 14.1(b)(7) of the Ordinance specifies that the definition of health care expenditure

includ[es], but [is] not limited to

(a) contributions by [a covered] employer on behalf of its covered employees to a health savings account as defined under section 223 of the United States Internal Revenue Code or to any other account having substantially the same purpose or effect without regard to whether such contributions qualify for a tax deduction or are excludable from employee income;

(b) reimbursement by such covered employer to its covered employees for expenses incurred in the purchase of health care services;

(c) payments by a covered employer to a third party for the purpose of providing health care services for covered employees;

(d) costs incurred by a covered employer in the direct delivery of health care services to its covered employees; and

(e) payments by a covered employer to the City to be used on behalf of covered employees. The City may use these payments to:

(i) fund membership in the Health Access Program for uninsured San Francisco residents; and

*645 (ii) establish and maintain reimbursement accounts for covered employees, whether or not those covered employees are San Francisco residents.

S.F. Admin. Code § 14.1(b)(7) (paragraphing added); see also ESR Reg. 4.2(A).

If an employer does not make required health care expenditures on behalf of employees in some other way, it may meet its spending requirement by making payments directly to the City under § 14.1(b)(7)(e). See ESR Reg. 4.2(A). We refer to this option as the City-payment option. If an employer elects the City-payment option, its covered employees who satisfy age and income requirements and are “uninsured San Francisco residents” may enroll in the HAP, and its other covered employees will be eligible for medical reimbursement accounts with the City. Covered employees may enroll in the HAP free of charge or at reduced rates. The HAP provides enrollees with “medical services with an emphasis on wellness, preventive care and innovative service delivery.” S.F. Admin. Code § 14.2(f). A primary care provider at the enrollee’s “medical home” “develop[s] and direet[s] a plan of care for each [HAP] participant.” Id. § 14.2(e). Enrollees pay income-based “participation fees” and “point-of-service fees.” Regulations Implementing Health San Francisco and Medical Reimbursement Account Provisions of the San Francisco Health Care Security Ordinance, Reg. 4(a) (2007).

An employer is exempt from making payments to the City if it makes health care expenditures under § 14.1(b)(7)(a)-(d) of at least $1.17 or $1.76 per hour (depending on the non-profit or for-profit status of the employer, and on the number of employees), and it is partially exempt to the extent that it makes lesser expenditures.

The Ordinance requires covered employers to “maintain accurate records of health care expenditures, required health care expenditures, and proof of such expenditures made each quarter each year,” but it does not require them “to maintain such records in any particular form.” S.F. Admin. Code § 14.3(b)(i). Employers must provide the City with “reasonable access to such records.” Id. If an employer fails to comply with these requirements, the City will “presume[ ] that the employer did not make the required health expenditures for the quarter for which records are lacking, absent clear and convincing evidence otherwise.” Id. § 14.3(b)(ii).

The Ordinance includes a special provision for employers with self-insured health plans. An employer providing “health coverage to some or all of its covered employees through a self-funded/self-insured plan” will “comply with the spending requirement ... if the preceding year’s average expenditure rate per employee meets or exceeds the applicable expenditure rate” for the employer. ESR Reg. 6.2(B)(2). Such employers do not need to keep track of their actual expenditures for each employee.

Relevant to our analysis, there are five categories of employers under the Ordinance. First are employers that have no ERISA plans (“No Coverage Employers”). Second are employers that have ERISA plans for all employees, and that spend at least as much as the Ordinance’s required health care expenditure per employee (“Full High Coverage Employers”). Third are employers that have ERISA plans for some, but not all, employees, and that spend at least as much as the Ordinance’s required health care expenditure per employee for employees under the ERISA plan (“Selective High Coverage Employers”). Fourth are employers that have ERISA plans for all employees, but that *646 spend less than the Ordinance’s required health care expenditure per employee (“Full Low Coverage Employers”). Fifth are employers that have ERISA plans for some, but not all, employees, and that spend less than the Ordinance’s required health care expenditure per employee for employees under the ERISA plan (“Selective Low Coverage Employers”).

No Coverage Employers may choose to continue without any ERISA plans. In that event, they can make their required health care expenditures directly to the City. See ESR Reg. 4.2(A)(6). If these employers choose, instead, to establish an ERISA plan, the Ordinance requires only that they make the required level of health care expenditures. They can do so by paying the full amount to the plan, or by paying part to the plan and part to the City. The Ordinance does not dictate which employees must be eligible for the plan, or what benefits a plan must provide. See ESR Reg. 4.2(A)(l)-(5).

Full High Coverage Employers may choose to leave their ERISA plans intact and unaltered. So long as they maintain records to show that they are making the required health care expenditures, they comply with the Ordinance.

Selective High Coverage Employers may choose to leave their ERISA plans intact and unaltered. In that event, for employees not covered by their ERISA plans, they can comply with the Ordinance by making the required health care expenditures to the City. See ESR Reg. 6.2(C) (“An employer may ... choose to purchase health insurance for its full-time employees, but make payment to the City to fund part-time employees’ membership in the Health Access Program[.]”).

Full Low Coverage Employers may choose to leave their ERISA plans intact and unaltered. In that event, they can comply with the Ordinance by making payments to the City in an amount equal to the difference between their expenditures for the ERISA plans and the required health care expenditures under the Ordinance. See ESR Reg. 6.2(D) (“[A]n employer who purchases a health insurance program with premiums that are less than the required expenditure ... may choose to pay the remainder to the City to establish and maintain medical reimbursement accounts for such employees.”).

Selective Low Coverage Employers may choose to leave their ERISA plans intact and unaltered. In that event, they can comply with the Ordinance for employees enrolled in their ERISA plans by paying to the City the difference between then-expenditures for the plans and the required health care expenditures under the Ordinance, and for employees not enrolled in their ERISA plans by paying to the City the full amount of the required health care expenditures.

We make two observations about the Ordinance. First, the Ordinance does not require employers to establish their own ERISA plans or to make any changes to any existing ERISA plans. Employers may choose to make up the difference between their existing health care expenditures and the minimum expenditures required by the Ordinance either by altering existing ERISA plans or by establishing new ERISA plans. However, they need not do so. The City-payment option allows employers to make payments directly to the City, if they so choose, without requiring them to establish, or to alter existing, ERISA plans. If employers choose to pay the City, the employees for whom those payments are made are entitled to receive either discounted enrollment in the HAP or medical reimbursement accounts with the City.

*647 Second, the Ordinance is not concerned with the nature of the health care benefits an employer provides its employees. It is only concerned with the dollar amount of the payments an employer makes toward the provision of such benefits. An employer can satisfy its spending requirements by paying the City; it can satisfy those requirements by funding exclusively preventive care; it can satisfy those requirements by setting up an on-site clinic and reimbursing employees for the purchase of over-the-counter medications; or it can satisfy those requirements in some other manner, such as funding a traditional ERISA plan. The Ordinance does not look beyond the dollar amount spent, and it does not evaluate benefits derived from those dollars.

IV. Discussion

The Association argues that ERISA preempts the Ordinance either because it creates a “plan” within the meaning of ERISA or because it “relates to” employers’ ERISA plans within the meaning of ERISA. For the reasons that follow, we disagree.

Crafted as a compromise between employers and employees, ERISA has two primary purposes. First, from the perspective of employees and other beneficiaries of ERISA plans, “ERISA was passed by Congress in 1974 to safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits.” Massachusetts v. Morash, 490 U.S. 107, 112, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989). “In enacting ERISA, Congress’ primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds. To that end, it established extensive reporting, disclosure, and fiduciary duty requirements to insure against the possibility that the employee’s expectation of the benefit would be defeated through poor management by the plan administrator.” Id. at 115, 109 S.Ct. 1668 (citation and footnote omitted). Second, from the perspective of employers, “[t]he purpose of ERISA is to provide a uniform regulatory regime over employee benefit plans.” Aetna Health Inc. v. Davila, 542 U.S. 200, 208, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004). Uniformity of regulation eases the administrative burdens on employers and plan administrators, thereby reducing costs to employers.

A. Presumption Against Preemption

We begin by noting that state and local laws enjoy a presumption against preemption when they “clearly operate[] in a field that has been traditionally occupied by the States.” De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806, 814, 117 S.Ct. 1747, 138 L.Ed.2d 21 (1997) (internal quotation marks omitted). This presumption informs our preemption analysis. See Boggs v. Boggs, 520 U.S. 833, 840, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997) (the fact that a state law “implements policies and values lying within the traditional domain of the States ... inform[s][a] preemption analysis”). The presumption against preemption applies in ERISA cases. “[NJothing in the language of [ERISA] or the context of its passage indicates that Congress chose to displace general health care regulation, which historically has been a matter of local concern.” N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 661, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). “[T]he Court has established a presumption that Congress did not intend ERISA to preempt areas of traditional state regulation that are quite remote from the areas with which ERISA is expressly concerned — reporting, disclo *? sure, fiduciary responsibility, and the like.” Rutledge v. Seyfarth, Shaw, Fairweather & Geraldson, 201 F.3d 1212, 1217 (9th Cir.2000) (emphasis in original; internal quotation marks omitted). Further, “ERISA pre-emption must have limits when it enters areas traditionally left to state regulation — such as the state’s ... regulation of health ... matters.” Operating Eng’rs Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 677 (9th Cir.1998).

The field in which the Ordinance operates is the provision of health care services to persons with low or moderate incomes. State and local governments have traditionally provided health care services to such persons. See Paul Star, The Social Transformation of American Medicine 185 (1982) (noting that other than the four-year period from 1879 to 1883, when there was a National Board of Health, “public health remained almost entirely a state and local responsibility”); id. at 181-82 (describing “the role of public dispensaries in treating the sick poor”); id. at 169 (describing the first phase of the hospital system in the United States, spanning 1751 to 1850, in which there were charitable hospitals “and public hospitals, descended from almshouses and operated by municipalities [and] by counties”); id. at 171 (noting that “[p]ublie hospitals generally treated the poor [and] relied on government appropriations rather than fees”). The Ordinance uses a novel approach to the provision of health services to such persons, but operates in a field that has long been the province of state and local governments, thereby “implementing] policies and values lying within the traditional domain of the States.” Boggs, 520 U.S. at 840, 117 S.Ct. 1754.

B. Preemption Under ERISA

ERISA governs “employee benefit plans,” including “employee welfare benefit plans.” 29 U.S.C. § 1002(3). Section 514(a) of ERISA states that ERISA preempts “any and all State laws insofar as they ... relate to any employee benefit plan” governed by ERISA. 29 U.S.C. § 1144(a). “A law ‘relate[s] to’ a covered employee benefit plan for purposes of § 514(a) if it [1] has a connection with or [2] reference to such a plan.” Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc. (“Dillingham”), 519 U.S. 316, 324, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) (alterations in original; some internal quotation marks omitted).

The Association and the amicus, the Secretary of Labor, make two central arguments. First, they argue that the City-payment option under the Ordinance creates an ERISA plan. This argument takes two forms. The Association argues in its brief that the Ordinance’s administrative obligations on employers, in combination with a reasonable person’s ability to ascertain “benefits, beneficiaries, source of financing, and procedures for receiving benefits,” creates an ERISA plan. The Secretary of Labor argues as amicus that the HAP itself is an ERISA plan. If either argument is correct, the Ordinance almost certainly makes an impermissible “reference to” an ERISA plan. Second, they argue that even if the City-payment option does not establish an ERISA plan, an employer’s obligation to make payments at a certain level- — whether or not the payments are made to the City — “relates to” the ERISA plans of covered employers and is thus preempted. We address these arguments in turn.

1. The City-Payment Option Does Not Create an ERISA “Plan”

If the City-payment option does not create an “employee welfare benefit plan” within the meaning of ERISA, the first *649 argument fails. The district court concluded that employers’ payments to the City do not create an ERISA plan. See Golden Gate Rest. Ass’n, 535 F.Supp.2d at 976 (Ordinance does not “create[] a separate de facto ERISA plan”). For the reasons that follow, we agree with the district court and hold that the City-payment option does not create an ERISA plan, de facto or otherwise. We first address the Association’s argument. We then address the Secretary’s argument.

a. Employers’ Administrative Obligations, and the Ability to Ascertain Benefits, Beneficiaries, Financing and Procedures

The first element of an employee welfare benefit plan is the existence of a “plan, fund or program.” Patelco Credit Union v. Sahni, 262 F.3d 897, 907 (9th Cir.2001). In the context of ERISA, the phrase “plan, fund or program” is a term of art. As relevant to this case, an ERISA “plan” is an “employee welfare benefit plan,” defined as

[а]ny plan, fund, or program which ... is ... established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants ..., through the purchase of insurance or otherwise, ... medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment. ...

29 U.S.C. § 1002(1); see also § 1002(3); Patelco Credit Union, 262 F.3d at 907.

The Supreme Court has emphasized that ERISA is concerned with “benefit plans,” rather than simply “benefits,” because “[o]nly ‘plans’ involve administrative activity potentially subject to employer abuse.” Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 16, 107 S.Ct. 2211, 96 L.Ed.2d 1 (1987). This focus on “benefit plans” is consistent with the first underlying purpose of ERISA-protecting employees against the abuse and mismanagement of funds. If an employee’s expectation of a “benefit” presents “a danger of defeated expectations [that] is no different from the danger of defeated expectations of wages for services performed,” then the employer’s actions giving rise to that expectation do not amount to a “benefit plan” because such danger is one “Congress chose not to regulate in ERISA.” Morash, 490 U.S. at 115, 109 S.Ct. 1668.

Two Supreme Court cases tell us that an employer’s obligation to make monetary payments based on the amount of time worked by an employee, over and above ordinary wages, does not necessarily create an ERISA plan. This is so even if the payments are made by the employer directly to the employees who are the beneficiaries of the putative “plan.” First, in Fort Halifax, a Maine statute required an employer to pay employees one week’s pay for every year worked if the employees were terminated because of a plant closing. The Court held that the statute did not create a “plan” within the meaning of ERISA: “The Maine statute neither establishes, nor requires an employer to maintain, an employee benefit plan. The requirement of a one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer’s obligation.” Id. at 12, 107 S.Ct. 2211.

Second, in Massachusetts v. Morash, 490 U.S. 107, 109, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), a Massachusetts statute required employers to pay discharged employees their “full wages, including holiday or vacation payments, on the date of discharge.” The Court held that the statute was not preempted by ERISA. The Court *650 wrote, “It is unlikely that Congress intended to subject to ERISA’s reporting and disclosure requirements those vacation benefits which by their nature are payable on a regular basis from the general assets of the employer and are accumulated over time only at the election of the employee.” Id. at 116, 109 S.Ct. 1668. The Court in Morash emphasized the importance of the fact that the employer made the payments out of its general assets:

An entirely different situation would be presented if a separate fund had been created by a group of employers to guarantee the payment of vacation benefits to laborers who regularly shift their jobs from one employer to another. Employees who are beneficiaries of such a trust face far different risks and have far greater need for the reporting and disclosure requirements that the federal law imposes than those whose vacation benefits come from the same fund from which they receive their paychecks.

Id. at 120,109 S.Ct. 1668.

The employer payments at issue under the San Francisco Ordinance, which the Association contends create an ERISA plan, are not made directly to employees. Rather, they are made to the City. But even if the employers made the payments directly to the employees, Fort Halifax and Morash indicate that those payments would not be enough to create an ERISA plan. Under the Ordinance, employers make the payments on a regular periodic basis and calculate those payments based on the number of hours worked by the employee. Further, as in Morash, employers make the payments “on a regular basis from [their] general assets.” If employers made the payments directly to the employees, there would be little to differentiate those payments from wages paid to employees. Indeed, the City allows employers to pay the City on a weekly, biweekly, or monthly basis, so that employers may coordinate their payments under the Ordinance with their employees’ regular pay periods. See ESR Reg. 6.2(A)(2).

The fact that an employer makes its payments to the City rather than to the employees confirms, if confirmation were needed, that the employer’s administrative obligations under the City-payment option do not create an ERISA plan. Under the Ordinance, an employer has no responsibility other than to make the required payments for covered employees, and to retain records to show that it has done so. The payments are made for a specific purpose, but the employer has no responsibility for ensuring that the payments are actually used for that purpose. The Association points to the burden entailed in keeping track of which workers perform qualifying work in San Francisco, keeping track of the hours those employees work, and keeping track of the credit (if any) an employer should get for health care payments made to non-City entities. This burden is not enough, in itself, to make the payment obligation an ERISA plan. Many federal, state and local laws, such as income tax withholding, social security, and minimum wage laws, impose similar administrative obligations on employers; yet none of these obligations constitutes an ERISA plan.

We have emphasized that an employer’s administrative duties must involve the application of more than a modicum of discretion in order for those administrative duties to amount to an ERISA plan. It is within the exercise of that discretion that an employer has the opportunity to engage in the mismanagement of funds and other abuses with which Congress was concerned when it enacted ERISA. In Bogue v. Ampex Corp., 976 F.2d 1319, 1323 (9th Cir.1992), we concluded that the employer, in determining whether an employee was *651 eligible for severance pursuant to an employment agreement, “was obligated to apply enough ongoing, particularized, administrative, discretionary analysis to make the [severance] program in this case a ‘plan.’ ” In Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1317 (9th Cir.1997), we emphasized that in order to amount to a “plan,” the agreement must require the employer to apply more than “some modicum of discretion.” There must be “enough ongoing, particularized, administrative, discretionary analysis to make the plan an ongoing administrative scheme.” Id. (emphasis in original; citation and internal quotation marks omitted).

An employer’s administrative obligations under the City-payment option do not run the risk of mismanagement of funds or other abuse. To be sure, employers must keep track of the number of hours their employees work and whether those hours are worked in San Francisco or elsewhere. Employers must also determine whether particular employees are “supervisorial” or “managerial,” and thereby not covered employees. S.F. Admin. Code § 14.1(b)(2)(d). An employer may have some incentive to minimize the number of covered employees or the number of reported hours worked in San Francisco, but the employer has no discretion under the Ordinance to alter its books to reduce its quarterly spending obligation. Rather, the employer’s administrative obligations involve mechanical record-keeping, and the employer’s payments to the City “are typically fixed, due at known times, and do not depend on contingencies outside the employee’s control.” Morash, 490 U.S. at 115, 109 S.Ct. 1668. Any potentially subjective judgments involved with making these calculations and maintaining these records amount to nothing more than the exercise of “a modicum of discretion.”

The Association contends that the administrative burden on the covered employers, combined with the reasonable as-certainability of benefits to employees, creates an ERISA plan. The Association contends that the employer’s obligation to make payments to the City satisfies the criteria for a plan set forth in Donovan v. Dillingham, 688 F.2d 1367, 1370-73 (11th Cir.1982) (en banc). Quoting Donovan, the Association argues, “Plan creation requires only that ‘a reasonable person could ascertain the intended benefits, beneficiaries, source of financing, and procedures for receiving benefits.’ Donovan, 688 F.2d at 1373.” We have relied on these criteria from Donovan in three primary circumstances in this circuit: in Scott v. Gulf Oil Corp., 754 F.2d 1499 (9th Cir.1985), in Modzelewski v. Resolution Trust Corp., 14 F.3d 1374 (9th Cir.1994), and in Winterrowd v. American General Annuity Ins. Co., 321 F.3d 933 (9th Cir.2003).

In Scott, we relied on the criteria set forth in Donovan to hold that an agreement to provide severance pay to terminated employees at a rate of two weeks’ salary for each year of employment was sufficient to establish an ERISA plan. 754 F.2d at 1503-04. The outcome of Scott is almost certainly no longer good law in light of the Supreme Court’s subsequent decisions in Fort Halifax and Morash.

In Modzelewski we set forth the Donovan factors in determining whether an employer’s promise to pay its employees monthly installments upon retirement amounted to a de facto pension plan. 14 F.3d at 1376. We concluded that “[because ERISA’s definition of a