Admit it: Your company, as a 401(k) sponsor, and company-decision makers who direct plan operations (including in-house trustees), are ERISA fiduciaries. Don’t quibble about this, but take a step back and figure out what to do about it.

You’ve read about investment advisers who can assist in performing investment duties and fiduciary insurance for protection (not to be confused with the required ERISA fidelity bond that does not protect fiduciaries). Those options may make sense for you, and maybe not. But, whether or not you use an investment adviser or purchase fiduciary insurance, there are other more basic steps to take.

Bear in mind that retirement plan fiduciaries don’t have to make perfect decisions. For example, they don’t necessarily have to select the cheapest mutual funds in the market for their plan’s investment array. But they do need to deliberate on their investment decisions. This is because cases which question fiduciary investment decisions frequently turn on the nature of the process followed by plan fiduciaries rather than the substance of the resulting decision. In other words, a “correct” investment decision reached in a flawed decision-making process is still subject to question. So, fiduciaries need to deliberate and make considered decisions. And the best way to prove such deliberation is documentation of the decision making process. Such documentation can be meeting minutes, memos or committee resolutions. There are no hard-and-fast rules on how to do this. The bottom line is that any reasonable written record of how and why the fiduciaries made their decision will work to protect them from breach of duty claims.

Also consider the Section 408(b)(2) fee disclosure rules that have been in place since August 2012. The specific matters that plan fiduciaries must consider have been expanded by the new fee disclosure rules. “Responsible plan fiduciaries” have to evaluate each provider’s fee disclosure statement to determine (1) the reasonableness of provider fees, and (2) whether or not the provider’s fee disclosure document itself meets all of the requirements of the fee disclosure rules. Have your plan fiduciaries done this? Have those fiduciaries made a written record of their evaluation of the provider fee disclosures? Do your plan fiduciaries meet regularly to review the plan’s investment performance and provider fees? A “no” answer to any of these questions is a red flag.

Need help with any of this? Plan service providers can provide invaluable assistance. Third-party administrators can help benchmark provider fees so fiduciaries have some guidelines on “reasonable” fees. Investment advisers acting as co-fiduciaries can assist in selecting investments for the plan and in monitoring investment results. And they can help with documentation of fiduciary decisions. But the ultimate responsibility for these matters probably falls on the shoulders of your in-house fiduciaries.

You’ve also seen commentary on recent court decisions and settlements that involve multi-million dollar recoveries against retirement plans and their fiduciaries. These court decisions get the headlines but some less publicized decisions provide helpful guidelines. Consider the U.S. Supreme Court case that can help control plan liabilities and related fiduciary exposure.

The Supreme Court’s 2013 decisions in Heimeshoff v. Hartford Life & Accident Insurance Co. demonstrates the effectiveness of the most important provision that probably is not in your plan. Heimeshoff upheld the validity under ERISA of a plan provision which required any suit to recover plan benefits to be filed with a three-year period after a proof of loss is due under Wal-Mart’s insured disability plan. A Federal district court decision has since found claims for welfare benefits time-barred as a result of a plan provision imposing a two-year limit on filing lawsuits to recover plan benefits (the claimant was advised of the limitations period in the plan’s written claim denial). So, even a valid benefit claim by a plan participant cannot be pursued in court after the expiration of a limitation period provided in the plan document (that’s if the period is reasonable in length and there is no controlling statute to the contrary).

For states like Illinois, which provides a “borrowed” 10-year statute of limitations for ERISA suits to collect benefits, the imposition of a two or three year limitation period through the plan document can provide considerable additional protection.

The bottom line is that there is no downside to this kind of provision. It should be in your 401(k) plan document and summary plan description, and it should be there now.

Fiduciaries do need to be concerned about expanded liabilities from the changing regulatory and judicial landscape. Employers, plan administrators, HR staff and plan service providers should also consider taking these proactive steps: (1) fiduciaries should meet regularly to discuss plan business and they should document their deliberations, and (2) your 401(k) plan should provide a two- or three-year limitation period for participant benefit claims. If you have any concerns about the prior conduct of plan fiduciaries, make sure you consult top notch plan service providers — and keep their advice confidential by dealing through independent legal counsel.

Williams has practiced in the employee benefits and ERISA arena since ERISA was passed in 1974. He has been recognized by his peers through a survey conducted by Leading Lawyers Network as among the top 5% of Illinois lawyers in Small, Closely and Privately Held Business Law and Employee Benefit Law. He maintains a website,, with additional updates, commentary and analysis on benefits and employment topics.

The above material is intended for general information purposes and should not be relied on or construed as professional advice. Under the applicable Illinois Rules of Professional Conduct, the contents of this e-mail may be considered to be advertising material. The transmission of this information is not intended to create, and receipt of it does not create a lawyer-client relationship.

Register or login for access to this item and much more

All Employee Benefit News becomes archived within a week of it being published

Community members receive:
  • All recent and archived articles
  • Conference offers and updates
  • A full menu of enewsletter options
  • Web seminars, white papers, ebooks

Don't have an account? Register for Free Unlimited Access