Introduction
The U.S. Department of Labor (DOL) has a robust program for investigating retirement plans and their fiduciaries with respect to the discharge of their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA), as amended. This article discusses nine areas of focus for DOL plan fiduciary investigations.
- Missing Participants
The most common focus of DOL investigations of defined benefit (DB) pension plans in the last few years has been reviewing plan fiduciary efforts to identify and locate “missing participants.” These participants may be those that the plan lacks accurate contact information for or those that have been unresponsive to contact attempts. The DOL most recently issued a package of updated sub-regulatory guidance in January 2021 aimed at helping plan administrators identify strategies for locating missing participants. Plans should consider their current policies and procedures and determine if they are engaging in a sufficient process.
- Data Privacy and Cybersecurity
A new and growing DOL investigatory topic is cybersecurity. The DOL issued a package of sub-regulatory guidance in April 2021 regarding this growing threat. Plan fiduciaries, administrators, and their service providers may want to consider taking steps to address plan-related cybersecurity. Steps could include evaluating administrative cybersecurity practices and implementing a cybersecurity policy.
- Timeliness of Participant Contributions
The DOL has long focused on protecting employee contributions in defined contribution (DC) plans. Participant contributions are treated as plan assets as of the date that payroll deductions are made. Ensuring timely contributions should be considered an administrative priority.
- Fiduciary Duties and Prohibited Transactions
The DOL has consistently focused on enforcing ERISA’s core fiduciary duties and prohibited transaction rules. Thus, the DOL is always considering whether a plan and its fiduciaries and service providers have been involved in any breaches of fiduciary duty or prohibited transactions. Care should be taken to document fiduciary diligence and decision making as well as plan expenditures.
- Required Plan Documents and Disclosures
A plan under DOL investigation is typically evaluated to confirm that it is appropriately maintaining required documents and properly disseminating required disclosures. If an investigation reveals gaps in a plan’s required documents, the DOL typically requires the gaps to be fixed and may impose statutory penalties. Periodic review of plan documents and disclosures is a best practice.
- Bonding
The DOL will almost always request evidence of a plan’s required bond and the administrator’s bond. ERISA Section 412 requires that every fiduciary and any person, with few exceptions, who handles plan assets be bonded for at least 10% of the amount of funds the person handles, up to a maximum of $500,000 per plan ($1 million for plans that hold employer securities). Because bonding is a core (and statutory) requirement, care should be taken to ensure that bonding required under ERISA is in place.
- Plan Policies and Procedures
The DOL may also examine whether a plan operates under policies and procedures intended to satisfy fiduciary obligations. The lack of policies and procedures may be cited as proof of an inadequate fiduciary process and, as a result, plan fiduciaries may want to consider dusting off their policies and procedures to identify any gaps or updates that should be addressed as well as any noncompliance.
- Participant Claims-and-Appeals Procedures
The DOL will often review a plan’s process for handling plan participant claims and appeals. For example, plans under investigation are typically asked to produce recent claims and appeals response letters, which are reviewed against the regulatory requirements. For that reason, plans may want to implement a program to comply with DOL regulations and ensure that participant claims-and-appeals documents conform to that program.
- Environmental, Social, and Governance Investing
Environmental, social, and governance (ESG) investing has long been a subject of regulatory interest by the DOL. Near the end of the Trump administration, the DOL issued a regulation that was largely viewed as cautious on ESG investing. In 2021, under the Biden administration, the DOL issued a nonenforcement action and vowed to revisit the Trump-era ESG regulation. On November 22, 2022 the DOL published a final rule which became effective in large part on January 30, 2023 that provides more ease for ESG investing. This is an evolving area of DOL focus and could become an enforcement priority in the future.
Conclusion
The DOL’s retirement plan investigatory program remains active; thus, plan fiduciaries may want to consider a compliance self-review based on the nine areas of focus highlighted in this article.
The full article in its original form can be found here.
William J. Marx (LAW ’16) is an associate at Morgan Lewis in the Philadelphia office. Marx helps employee benefit plan sponsors and financial service providers with a range of matters related to employee benefits. His focus includes advising clients on qualified and nonqualified retirement plan issues, and the fiduciary and prohibited transaction rules under ERISA.
Elizabeth S. Goldberg is a partner at Morgan Lewis in the Pittsburgh office. Goldberg advises employee benefit plan sponsors and service providers to those plans (including financial service firms) on US Department of Labor ERISA enforcement investigations and regulatory matters, and ERISA fiduciary counseling compliance.