Advisors & ERISA

Yes. In fact, the U.S. Department of Labor is on record saying that it wants participants to have as much assistance as possible, and that it encourages plan sponsors to offer participants investment advice if plan sponsors determine their participants need it to make informed decisions.** In addition, the DOL, Congress and the Administration have increasingly voiced strong support of investment advice for participants.

Portfolio management services have been used in ERISA plans for many years. ERISA includes provisions for plan sponsors to appoint investment managers, and the Department of Labor regulations on 404(c) plans discuss various examples involving investment management services.

Not really. We think that providing advice and/or portfolio management can actually reduce your risk as a plan sponsor. Employees who make uninformed decisions about savings and investing are less likely to be prepared for their retirements. By making advice and/or portfolio management available, you ensure that your employees have access to the help and information they need to plan for their futures, decreasing the chances of dissatisfaction and possible litigation.

Furthermore, if you as a plan sponsor/fiduciary know that the participants in your plan need help with investing for retirement, you should provide the needed help, whether it is education, advice, professional management, or all three. This is supported by ERISA section 404(a)(1)(B), which requires that all plan fiduciaries exercise their responsibilities "with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims." (Emphasis added.)

The Department of Labor has stated that providing advice can actually reduce a sponsor's fiduciary risk. In a major policy speech on September 15, 2000, Leslie Kramerich, Acting Assistant Secretary of Labor, Pension and Welfare Benefits Administration had this to say on the subject:

"[W]e believe that employers can be responsive to the investment education and investment advice needs of their employees, without significant burdens or risk of liability. The selection of providers that offer informed, unbiased and appropriate investment education or investment advice will, in our view, not only serve to increase the likelihood of employees achieving retirement security, but also significantly reduce the potential for employee dissatisfaction and possible litigation."

Informed policymakers caution that relying on education alone is no longer enough. According to DOL's current Assistant Secretary, "[m]eaningful comprehensive investment advice is more important now than it has ever been" and "[i]nvestment education, while important, is simply not enough." Assistant Secretary Ann L. Combs delivered this message to Congress on July 17, 2001 in connection with testimony on the subject of "Retirement Security Advice Legislation" to the Subcommittee on Employer-Employee Relations of the House Committee on Education and the Workforce.

The following is a summary, in question and answer form, of the Department of Labor's position regarding financial advisory services rendered to 401(k) pension plans. These guidelines can change without notice, so it is important to review them with your legal council before relying upon them:

Is it legal to provide investment advice services or portfolio management services, or both, to ERISA plan participants?

Yes. In fact, the U.S. Department of Labor is on record saying that it wants participants to have as much assistance as possible, and that it encourages plan sponsors to offer participants investment advice if plan sponsors determine their participants need it to make informed decisions.** In addition, the DOL, Congress and the Administration have increasingly voiced strong support of investment advice for participants.

Portfolio management services have been used in ERISA plans for many years. ERISA includes provisions for plan sponsors to appoint investment managers, and the Department of Labor regulations on 404(c) plans discuss various examples involving investment management services.

Would doing nothing, in other words, not providing these services to participants, be safer from a legal perspective?

Not really. We think that providing advice and/or portfolio management can actually reduce your risk as a plan sponsor. Employees who make uninformed decisions about savings and investing are less likely to be prepared for their retirements. By making advice and/or portfolio management available, you ensure that your employees have access to the help and information they need to plan for their futures, decreasing the chances of dissatisfaction and possible litigation.

Furthermore, if you as a plan sponsor/fiduciary know that the participants in your plan need help with investing for retirement, you should provide the needed help, whether it is education, advice, professional management, or all three. This is supported by ERISA section 404(a)(1)(B), which requires that all plan fiduciaries exercise their responsibilities "with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims." (Emphasis added.)

What is the Department of Labor's view on providing advice and/or portfolio management?

The Department of Labor has stated that providing advice can actually reduce a sponsor's fiduciary risk. In a major policy speech on September 15, 2000, Leslie Kramerich, Acting Assistant Secretary of Labor, Pension and Welfare Benefits Administration had this to say on the subject:

"[W]e believe that employers can be responsive to the investment education and investment advice needs of their employees, without significant burdens or risk of liability. The selection of providers that offer informed, unbiased and appropriate investment education or investment advice will, in our view, not only serve to increase the likelihood of employees achieving retirement security, but also significantly reduce the potential for employee dissatisfaction and possible litigation."

Is providing investment education a sufficient way to fulfill my role as a fiduciary?

Informed policymakers caution that relying on education alone is no longer enough. According to DOL's current Assistant Secretary, "[m]eaningful comprehensive investment advice is more important now than it has ever been" and "[i]nvestment education, while important, is simply not enough." Assistant Secretary Ann L. Combs delivered this message to Congress on July 17, 2001 in connection with testimony on the subject of "Retirement Security Advice Legislation" to the Subcommittee on Employer-Employee Relations of the House Committee on Education and the Workforce.