Bronk v. Mountain States Telephone And Telegraph, Inc. d/b/a/ U.S. West Communications, 216 F.3d 1086 (10^th Cir. 2000)-This court upheld the district court's summary judgment against a group of leased employees who sought benefits under the welfare and pension plans which their employer provided for "regular" employees. Here, the plaintiffs' leasing contracts clearly provided that they were employees of the leasing company, and they received paychecks from the leasing company. Furthermore, the plans contained language limiting participation to those in "active service of" (receive a regular and stated compensation) U.S. West, or those classified as "regular" employees according to the payroll records of US West or one of its subsidiaries.

In a previous hearing of this case (Bronk I), the district court sided with the employees if they could show "common law" employee status. The court reasoned that the plans were subject to ERISA's "minimum participation, vesting and funding requirements . . . regardless of the language of the plan." Furthermore, the court concluded that ERISA § 202(a) implicitly incorporated certain sections of the Internal Revenue Code (26 U.S.C. §§ 410, 414) and Treasury Department regulations which treated leased employees as employees for tax purposes.

This court reiterated its earlier position that "absent explicit indication by Congress, the tax-qualification provisions of the [IRC] do not rewrite pension plans under ERISA § 202(a) to mandate inclusion of employees, leased or otherwise, whom the plans have permissibly excluded." The case on which the earlier district court decision had relied, Crouch v. Mo-Kan Iron Workers Welfare Fund, 740 F.2d 805 (10^th Cir. 1984), dealt with a plan which expressly required compliance with tax code and Treasury regulations. But here, the plans included no "obligation, explicit or otherwise, to maintain tax-qualified status."