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What protections do the fiduciary rules of ERISA provide?

ERISA protects your plan from mismanagement and misuse of assets through its fiduciary provisions. ERISA defines a fiduciary as anyone who exercises discretionary control or authority over plan management or plan assets, anyone with discretionary authority or responsibility for the administration of a plan, or anyone who provides investment advice to a plan for compensation or has any authority or responsibility to do so. Plan fiduciaries include, for example, plan trustees, plan administrators, and members of a plan's investment committee.

What is ERISA?

The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire.

What is an Investment Policy Statement?

An Investment Policy Statement identifies the objectives of the plan and provides a blueprint of investment strategy and practice intelligible to a thrid party.  Most well-drafted investment policy statements for 401(k) plans will include:
  • The underlying purpose of the plan and the general plan investment philosophy.
  • Description of factors a plan will take into account in selecting investments, risk/return characteristics, guidelines for asset classes and plan diversification.  The factors should reflect a consideration of particpant demographics, likely plan liquidity needs over plan's life, and the purpose of the plan.  If the plan will invest in employer stock, the investment policy statement should provide parameters for such investment, consistent with the plan instrument.
  • Description of how plan will select service providers, including money managers.  The selection process should consider both qualitative and expense factors.
  • Description of the methodology the plan will use to monitor service providers.
  • Criteria for evaluating investment performance.
  • Description of how and how often the plan will rebalance its investment portfolio.
  • Description of procedures for controlling and accounting for investment-related expenses.
  • Identification of the various parties involved in the process of selecting, managing and monitoring investments, and their particular responsibilities.
  • For plans that allow participants to instruct how their account balances are invested: 
      • That the plan intends to comply with section 404(c) and description of how the plan will satisfy each of section 404(c)'s requirements, including adequate communication with employees.
      • The number of investment options offered.
      • The asset classes for each investment option.
      • The method and criteria used to select particular investment options, including fund expense and other fees.
      • Methodology to monitor fund performance and criteria for deciding whether to replace funds.
      • Description of investment education or advice available to participants.
      • Restrictions on particular investment options, especially if a brokerage account or employer stock option is provided.
      • Description of how any default funds are chosen for participants who do no provide investment instructions.

How can you monitor a Service Provider?

An employer should establish and follow a formal review process at reasonable intervals to decide if it wants to continue using the current service providers or look for replacements.  When monitoring service providers, actions to ensure they are performing the agreed-upon services include: reviewing the service providers' performance;  reading any reports they provide;  checking actual fees charged;  asking about policies and practices and following up on participant complaints.

What Are The Types Of Plan Fees And Who Pays For Them?

There are a variety of plan fees and expenses that may affect a retirement plan. The following is an overview of some of those fees and expenses and the different ways in which they may be charged.   Plan fees and expenses general fall into three categories: 
Plan Administrative Fees.  The day-to-day operation of a plan involves expenses for basic administrative services -- such as plan recordkeeping, accounting, legal and trustee services -- that are necessary for administering the plan as a whole.  In the case of a 401(k), profit sharing, or other similar plan with individual accounts, administrative fees are either allocated among individual accounts in proportion to each account balance or passed through as a flat fee against each participant's account.  Generally, the more services provided, the higher the fees.
Investment Fees.  By far the larget component of plan fees and expenses is associated with managing plan investments. Fees for investment management and other related services generally are assessed as a percentage of assets invested.  Employers should pay attention to these fees as they are paid in the form of an indirect charge against the participant's account or the plan because they are deducted directly from investment returns.  Net total return is the return after these fees have been deducted.  For this reason, these fees, which are not specifically identified on statements of investments, may not be immediately apparent to employers.
Individual Service Fees.  In addition to overall administrative expenses, there may be individual service fees associated with optional features offered under an individual account plan.  Individual service fees may be charged separately to the accounts of those who choose to take advantage of a particular plan feature.  For example, fees may be charged to a participant for taking a loan from the plan or for executing participant investment directions.

What Are The Essential Elements Of A Plan?

Each plan has certain key elements. These include:
    *  A written plan that describes the benefit structure and guides day-to-day operations.
    *  A trust fund to hold the plan's assets.
    *  A recordkeeping system to track the flow of monies going to and from the retirement plan
    *  Documents to provide plan information to employees participating in the plan and to the government.

Employers often hire outside professionals or third-party service providers or, if applicable, use an internal administrative committee or human resources department to manage some or all of a plan's day-to-day operations.  There may be one or a number of officials with discretion over the plan.  These are the plan's fiduciaries.

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.

What Steps Can Be Taken To Evaluate Plan Fees And Expenses?

Fees and expenses are one of several factors to consider when selecting and monitoring plan service providers and investments. The level and quality of service and investment risk and return will also affect your decisions. 
  • Begin by establishing an objective process to aid in your decision making.  This process should include an understanding of the fees and expenses you will pay and a review of those charges as they relate to the services to be provided and the investments you are considering.
  • Before negotiating with prospective providers, think about the specific services you would like from a service provider.  Include the tuypes and frequency of reports you wish to receive, communications to participants, meetings for participants, and the frequency of participant investment transfers.
  • You will also need to consider the level of responsibility you want the prospective service provider to assume, the services that must be included in any retirement plan, the possible extras or customized services you wish to provide, and optional features, such as loans, Internet trading and telephone transfers.
  • In addition, ask each prospective provider to be specific about which services are covered for the estimated fees and which are not.
  • Once you have selected a service provider or investments, be prepared to monitor the level and quality of the services and performance of investments to make sure they continue to be reasonable and they suit the needs of your employees.  Make sure you receive information on a regular basis so that you can monitor investment returns and service provider performance and, if necessary, make changes.

What other federal agencies regulate plans?

The Treasury Department's Internal Revenue Service is responsible for ensuring compliance with the Internal Revenue Code, which establishes the rules for operating a tax-qualified pension plan, including pension plan funding and vesting requirements. A pension plan that is tax-qualified can offer special tax benefits both to the employer sponsoring the plan and to the participants who receive pension benefits. The IRS maintains a toll-free taxpayer assistance line for employee plans at 877.829.5500.

What Other Factors Might Have An Impact On The Fees And Expenses Of A Retirement Plan?

Funds that are “actively managed” (i.e., funds with an investment adviser who actively researches, monitors, and trades the holdings of the fund to seek a higher return than the market as a whole) generally have higher fees than funds that are “passively managed”. The higher fees are associated with the more active management provided and increased sales charges from the higher level of trading activity. While actively managed funds seek to provide higher returns than the market, neither active management nor higher fees necessarily guarantee higher returns.

What is the role of the U.S. Department of Labor in regulating pension plans?

The U.S. Department of Labor enforces Title I of the Employee Retirement Income Security Act (ERISA), which, in part, establishes participants' rights and fiduciaries' duties. However, certain plans are not covered by the protections of Title I.  They are:
  • Federal, state, or local goverment plans, including plans of certain international organizations
  • Certain church or church association plans
  • Plans maintained solely to comply with state workers'compensation, unemployment compensation or disability insurance laws
  • Plans maintained outside the United States primarily for non-resident aliens
  • Unfunded excess benefit plans - plans maintained solely to provide benefits or contributions in excess of those allowable for tax-qualified plans.


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