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Walking on Eggshells: ERISA Compliance Depends on Plan Documents

The Employee Retirement Income Security Act of 1974 (ERISA) covers both defined-benefit and defined-contribution retirement plans. If your organization offers its employees either, you may feel like you are constantly walking on eggshells trying to oversee all the regulatory details involved. One critical way to stay in compliance and avoid costly penalties is to make sure your plan operates consistently with its plan documents.

Most important requirement

Although abiding by your plan documents might sound like a straightforward proposition, this is not always the case. As a reminder, ERISA requires plan fiduciaries to discharge their duties solely in the interest of participants and their beneficiaries “in accordance with the documents and instruments governing the plan.”

For example, one employer recently found itself the defendant in a class action suit primarily involving alleged violations of the Fair Labor Standards Act. During this legal action, the employer also was accused of violating ERISA. How? Because the disputed wages were “eligible compensation” under the employer’s retirement plan, as described in its plan document, ERISA applied as well.

Two imperatives

ERISA’s mandate requires employers to know the directives of their plan documents and run the plans accordingly. To do so, you must first confirm that your plan documents are ERISA-compliant.

Underlying those two imperatives is the assumption that you know which documents are the governing ‘plan documents.’ There is no doubt that the core document explaining how the plan operates comes under this heading, but you may have other written pronouncements tucked away that could be deemed plan documents in litigation.

For instance, investment policy statements, as well as plan loan and qualified domestic relations order procedures, also might be plan documents if audited or subjected to legal scrutiny. Even an unsigned plan amendment might. While of course you would not knowingly write a document that violates ERISA, inconsistencies could easily arise if you do not subject an amendment to the same level of review as a core plan document. Ask your attorney to look at all such items and help you decide which ones are plan documents.

Also, do not draft documents, such as investment policy statements, because you think you should, but then not actually follow them. What would be worse: having a document, such as an investment policy statement, and not following it or not having one at all? It will be a case-by-case determination.

And here is another sobering reminder: The IRS Employee Plans Compliance Resolution System will not necessarily get you off the hook with respect to plan document violations involving a fiduciary breach that causes financial harm to the plan. That is because such matters generally fall under the purview of the U.S. Department of Labor, not the IRS.

Explicit identification

As you review various policy statements, consider explicitly and legally identifying which ones are — and are not — plan documents. Doing so will not only ensure that everything is ERISA-compatible but also help prevent you from inadvertently making promises that you cannot keep. Contact us for further information.

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