Note: The following checklist is a general guide for ERISA compliance for retirement plans. It is not intended to be comprehensive but does outline the areas of major compliance.
Compliance with the Employee Retirement Income Security Act of 1974 (ERISA) begins with knowing the rules. Plan administrators and other plan officials can use this checklist as a quick diagnostic tool for assessing a plan’s compliance with certain important ERISA rules; it is not a complete description of all ERISA’s rules and it is not a substitute or a comprehensive compliance review. Use of this checklist is voluntary, and it should not be filed with your Form 5500.
If you answer "No" to any of the questions below, you should review your plan’s operations because you may not be in full compliance with ERISA’s requirements.
1. Have you provided plan participants with a summary plan description, summaries of any material modifications of the plan, and annual summary financial reports?
2. Do you maintain copies of plan documents at the principal office of the plan administrator for examination by participants and beneficiaries?
3. Do you respond to written participant inquiries for copies of plan documents and information within 30 days?
4. Does your plan include written procedures for making benefit claims and appealing denied claims, and are you complying with those procedures?
5. Is your plan covered by a fidelity bond against losses due to fraud or dishonesty?
6. Are the plan’s investments diversified so as to minimize the risk of large losses?
7. If the plan permits participants to select the investments in their plan accounts, has the plan provided them with enough information to make informed decisions?
8. Has a plan official determined that the investments are prudent and solely in the interest of the plan’s participants and beneficiaries, and evaluated the risks associated with plan investments before making the investments?
9. Did the employer or other plan sponsor send participant contributions to the plan on a timely basis?
10. Did the plan pay participant benefits on time and in the correct amounts?
If you answer "Yes" to any of the questions below, you should review your plan’s operations because you may not be in full compliance with ERISA’s requirements.
1. Has the plan engaged in any financial transactions with persons related to the plan or any plan official, for example, has the plan made a loan to or participated in an investment with the employer?
2. Has the plan official used the assets of the plan for his/her own interest?
3. Have plan assets been used to pay expenses that were not authorized in the plan document, were not necessary to the proper administration of the plan, or were more than reasonable in amount?
If you need help answering these questions or want additional guidance about ERISA requirements, please contact us.
Bianca Zahrai, Esq.
San Francisco ERISA Advisor
Telephone: +1 (415) 818-4473
Facsimile: +1 (415) 946- 8801
Seeking to provide training for agents who will be auditing plans for compliance with the Pension Protection Act of 2006 (PPA), the IRS initiated a project to identify potential areas of non-compliance.
Although the project remains ongoing, the IRS released a list of issues it has identified so far:
Compliance with the Code section 436 funding-based limits is a qualification requirement, the release point outs. The PPA added new Code section 401(a)(29) to require single-employer defined benefit plans to comply with the new Code section 436 limits on benefits and benefit accruals if the plan is underfunded. Qualification concerns would also be raised where the plan is not operated in accordance with its terms (e.g., determining accrued benefits using a definition of compensation or measure of service that is inconsistent with the plan terms).
Nonetheless, the release notes that many of the identified PPA compliance issues are failures to comply with the funding rules and would, therefore, involve the potential assessment of excise taxes and penalties rather than raise qualification concerns.
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1 Applies to all plans, including "grandfathered" plans, effective for plan years beginning on or after Sept. 23, 2010 (Jan. 1, 2011, for calendar year plans).
3 Delayed until regulations issued/date TBD
4 A temporary exemption applies to certain categories of employers
5 Applies to nongrandfathered plans
2 Applies to all plans, including grandfathered plans, effective for plan years beginning on or after Jan. 1, 2014.
3 Delayed until regulations issued /date TBD.
The Department of Labor (DOL) has proposed a delay in the applicability date of its Fiduciary Rule to June 9, 2017, in order to complete a review of the Rule.
MEMORANDUM FOR THE SECRETARY OF LABOR
SUBJECT: Fiduciary Duty Rule
One of the priorities of my Administration is to empower Americans to make their own financial decisions, to facilitate their ability to save for retirement and build the individual wealth necessary to afford typical lifetime expenses, such as buying a home and paying for college, and to withstand unexpected financial emergencies.
Term "Fiduciary"; Conflict of Interest Rule Retirement Investment Advice, 81 Fed. Reg. 20946 (April 8, 2016) (Fiduciary Duty Rule or Rule), may significantly alter the manner in which Americans can receive financial advice, and may not be consistent with the policies of my Administration.
Accordingly, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Section 1. Department of Labor Review of Fiduciary Duty Rule. (a) You are directed to examine the Fiduciary Duty Rule to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice. As part of this examination, you shall prepare an updated economic and legal analysis concerning the likely impact of the Fiduciary Duty Rule, which shall consider, among other things, the following:
(i) Whether the anticipated applicability of the Fiduciary Duty Rule has harmed or is likely to harm investors due to a reduction of Americans' access to certain retirement savings offerings, retirement product structures, retirement savings information, or related financial advice;
(ii) Whether the anticipated applicability of the Fiduciary Duty Rule has resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees; and
(iii) Whether the Fiduciary Duty Rule is likely to cause an increase in litigation, and an increase in the prices that investors and retirees must pay to gain access to retirement services.
(b) If you make an affirmative determination as to any of the considerations identified in subsection (a) or if you conclude for any other reason after appropriate review that the Fiduciary Duty Rule is inconsistent with the priority identified earlier in this memorandum then you shall publish for notice and comment a proposed rule rescinding or revising the Rule, as appropriate and as consistent with law.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) You are hereby authorized and directed to publish this memorandum in the Federal Register.
DONALD J. TRUMP
Source: The Department of Labor: https://www.dol.gov/agencies/ebsa/laws-and-regulations/rules-and-regulations/completed-rulemaking/1210-AB32-2
Source, Whitehouse.gov : https://www.whitehouse.gov/the-press-office/2017/02/03/presidential-memorandum-fiduciary-duty-rule
© 2017 San Francisco ERISA Advisor. This is for informational purposes only, and is not intended to be used as legal advice.
Bianca Zahrai, Esq.
San Francisco ERISA Advisor