If you sponsor a 401(k) plan or have discretion regarding the administration, management, or investments of the plan, you’re probably a fiduciary. As a fiduciary, you may be personally liable or co-liable for losses resulting from acts that violate the Employee Retirement Income Security Act of 1974 (ERISA). However, you may be able to protect yourself by following some best practice guidelines for meeting your fiduciary responsibilities.
401(k) plan fiduciary essentials
In order to reduce fiduciary risk, every plan sponsor should consider having the following in place:
Fiduciary warranties, which provide assurance from an advisor or investment provider that investments were selected in accordance with ERISA.
Fiduciary insurance, which covers liability arising from a breach of fiduciary duty and should be purchased by the plan sponsor or the fiduciaries themselves.
A plan committee, which consists of designated fiduciaries who share responsibility for plan management, governance, and administration, as well as investment oversight. The committee’s deliberations should be documented, including the minutes of every meeting, to provide proof of a prudent process. Members should be diverse, should be drawn from different parts of the business, and should understand their fiduciary duties and associated liabilities.
401(k) plan due diligence documentation
Even a well-governed plan managed by prudent fiduciaries can be the target of Department of Labor (DOL)/IRS audits or ERISA litigation. Thus, being prepared with evidence of fiduciary prudence is imperative in the event of a regulatory audit or lawsuit.
That’s why it’s important to document all meetings and keep a file of important plan information.
Your file should include:
- Plan information (e.g., committee meeting minutes, committee charter details, a plan document, a trust agreement, an investment policy statement, Form 5500 filings, and annual compliance testing results)
- Service provider information (e.g., 408[b] disclosures, service and fee agreements, and RFI or RFP documents)
- Participant communication (e.g., 404[a] participant fee disclosure, as well as SPD, SAR, and QDIA notices)
Having a strong process is key for retirement plan sponsors
In this era of heightened fiduciary scrutiny, you need to be well informed and prepared to meet all your fiduciary duties. Failure to do so may subject you to liability.
Good plan governance and documentation can help provide you the protection you need.
The guidelines above, while helpful, don’t constitute legal advice and shouldn’t be solely relied on. To be certain that you’re complying with your fiduciary responsibilities, follow up with your legal counsel.
For more information, please visit the Department of Labor’s dedicated fiduciary website: https://www.dol.gov/general/topic/retirement/fiduciaryresp.
The content of this presentation is for general information only and is believed to be accurate and reliable as of presentation date but may be subject to change. It is not intended to provide investment, tax or legal advice. Please consult your own independent advisor as to any investment, tax, or legal statements made herein.
MGTS-P40226-GE 10/19-40496 MGR100219499826