13 May Meeting Your Fiduciary Responsibilities

This article contains information from a Department of Labor Communication

Offering a retirement plan can be one of the most challenging, yet rewarding, decisions an employer can make. The employees participating in the plan, their beneficiaries, and the employer all benefit when a retirement plan is in place. Administering a plan and managing its assets, however, require certain actions and involve specific responsibilities.

4 Essential Elements Of A Retirement Plan

Each plan has certain key elements. These include:

1. A written plan that describes the benefit structure and guides day-to-day operations;
2. A trust fund to hold the plan’s assets;
3. A recordkeeping system to track the flow of monies going to and from the retirement plan;
4. Documents to provide plan information to employees participating in the plan and to the government.

Who Is A Fiduciary?

Many of the actions involved in operating a plan make the person or entity performing them a fiduciary. Using discretion in administering and managing a plan or controlling the plan’s assets makes that person a fiduciary to the extent of that discretion or control. Thus, fiduciary status is based on the functions performed for the plan, not just a person’s title.

A plan must have at least one fiduciary (a person or entity) named in the written plan, or through a process described in the plan, as having control over the plan’s operation. The named fiduciary can be identified by office or by name. For some plans, it may be an administrative committee or a company’s board of directors.

A plan’s fiduciaries will ordinarily include the trustee, investment advisers, all individuals exercising discretion in the administration of the plan, all members of a plan’s administrative committee (if it has such a committee), and those who select committee officials. Attorneys, accountants, and actuaries generally are not fiduciaries when acting solely in their professional capacities. The key to determining whether an individual or an entity is a fiduciary is whether they are exercising discretion or control over the plan.

A number of decisions are not fiduciary actions but rather are business decisions made by the employer. For example, the decisions to establish a plan, to determine the benefit package, to include certain features in a plan, to amend a plan, and to terminate a plan are business decisions not governed by ERISA. When making these decisions, an employer is acting on behalf of its business, not the plan, and therefore is not a fiduciary. However, when an employer (or someone hired by the employer) takes steps to implement these decisions, that person is acting on behalf of the plan and, in carrying out these actions, may be a fiduciary.

5 Significant Fiduciary Responsibilities

Fiduciaries have important responsibilities and are subject to standards of conduct because they act on behalf of participants in a retirement plan and their beneficiaries. These responsibilities include:

1. Acting solely in the interest of plan participants and their beneficiaries and with the exclusive purpose of providing benefits to them;
2. Carrying out their duties prudently;
3. Following the plan documents (unless inconsistent with ERISA);
4. Diversifying plan investments; and
5. Paying only reasonable plan expenses.

The duty to act prudently is one of a fiduciary’s central responsibilities under ERISA. It requires expertise in a variety of areas, such as investments. Lacking that expertise, a fiduciary will want to hire someone with that professional knowledge to carry out the investment and other functions. Prudence focuses on the process for making fiduciary decisions. Therefore, it is wise to document decisions and the basis for those decisions. For instance, in hiring any plan service provider, a fiduciary may want to survey a number of potential providers, asking for the same information and providing the same requirements. By doing so, a fiduciary can document the process and make a meaningful comparison and selection.

Following the terms of the plan document is also an important responsibility. The document serves as the foundation for plan operations. Employers will want to be familiar with their plan document, especially when it is drawn up by a third-party service provider, and periodically review the document to make sure it remains current. For example, if a plan official named in the document changes, the plan document must be updated to reflect that change.

Diversification – another key fiduciary duty – helps to minimize the risk of large investment losses to the plan. Fiduciaries should consider each plan investment as part of the plan’s entire portfolio. Once again, fiduciaries will want to document their evaluation and investment decisions.

Limiting Liability

With these fiduciary responsibilities, there is also potential liability. Fiduciaries who do not follow the basic standards of conduct may be personally liable to restore any losses to the plan, or to restore any profits made through improper use of the plan’s assets resulting from their actions.

Many 401(k) providers make statements about fiduciary liability to give the impression that they take this responsibility from the plan sponsor completely. This is not the case. Some of these providers are referring to a co-fiduciary situation where the provider is a co-fiduciary on the plan along with the plan sponsor. Others are simply uninformed and provide no fiduciary liability protection at all.

Outsourcing Fiduciary Responsibility

Many employers will choose to outsource the management of day to day operations of their 401(k) plan. An employer can delegate their fiduciary responsibility to a third party such as TAG Resources, LLC. TAG is the largest “end to end” 401(k) provider in the United States. TAG becomes an ERISA 402(a) Named Fiduciary on your plan, serves as the 3(16) Plan Administrator and 3(21) Non-investment Fiduciary, and selects the 3(38) Investment Manager, minimizing  your fiduciary burden to the greatest degree in the industry.

If you want information on TAG Resources’ fiduciary liability protection, please contact:

TAG Resources, LLC
tagresources.com
866-315-1463
info@tagresources.com