What's in a name? For ERISA fiduciaries, plenty

It’s difficult for ERISA fiduciaries to carry out their responsibilities if they don’t first understand what those responsibilities are.

“Many – perhaps most – people who wind up being a plan sponsor or being a plan fiduciary themselves find themselves in that role without really understanding what they have signed on for,” said Nevin Adams, chief content officer for the American Retirement Association. Adams was speaking on a recent episode of the podcast he and Faegre Drinker’s Fred Reish host — the Nevin & Fred podcast. “In fact, a lot of people wind up with being a plan sponsor as a small part of their overall responsibilities. That’s kind of dangerous, because it has a lot of responsibility and liability associated with it.”

When it comes to workplace retirement plans, he said, there are three kinds of people: Those who are ERISA fiduciaries and know it; those who aren’t ERISA fiduciaries and know it; and those who are ERISA fiduciaries but don’t know it.

“I continue to be surprised by some of the questions I get from fiduciaries,” said attorney Fred Reish, a partner in Faegre Drinker’s Benefits & Executive Compensation practice group. “The job of a fiduciary is not to do what participants want but to do what is right for participants. The absolute starting point , the arbitrator of all things important, is the fiduciary. They have to get the right information, they have to go through a prudent process, hopefully get advice from another fiduciary or advisor if they need it and for their own protection, document it.”

In a recent Nevin & Fred podcast episode, ”Seven Things ERISA Fiduciaries Should Know,” the two offered a practical look at what being a plan sponsor means. Adams emphasized, “That’s not to say there are only seven things you should know, but it gives you a framework.”

Defining the role. “The law has always been that you are a plan sponsor based on what you do, not your title,” Adams said. “In most cases, if you don’t specifically know you are not a fiduciary, you probably are one, and you should just assume that until assured otherwise. If you have the ability to influence what is going on with the plan, you are going to be considered a fiduciary, which means every decision you make has to be in the best interests of plan participants and beneficiaries.”

Fiduciary training is key, Reish said.

“I break fiduciary training into two categories,” he said. “One is just the basics. If you are going to do it with PowerPoint, slide No. 1 is you are a fiduciary. Slide No. 2 is `here is what a fiduciary has to do,’ rather than the latest and greatest court decision. The attorneys who do this tend to get into the weeds too quickly and don’t understand that many committee members don’t even understand they are fiduciaries. Number two is training in the cases so they understand what people are getting sued for or what to look out for. Number three is whenever there is a new committee member, start them back at the basics.”

No outsourcing. “With a couple of exceptions, you can’t offload or outsource responsibilities,” Adams said. “The problem most people have is that they like the idea of laying off that responsibility, but they have pet funds that they want to make sure are on the menu. You want to be careful when you do that, because you break that shield.”

Only a small part of the responsibility can be offloaded, Reish said.

“You can never get away from being the ultimate decision maker,” he said. “Once you start giving direction and tiptoeing up to that line, you are at risk. The plaintiff’s attorney is going to say you got too involved. From their perspective, you sue everybody in the operating room and later on figure out who did wrong. Have clear lines.”

The selection committee may be liable. “If you are responsible for selecting the people on the committee who administer the plan, then you are going to be an ERISA fiduciary,” Adams said. “If you are able to pick the people who make the decisions, then you have the ability to influence the decisions the plan is making by putting certain people on the committee or pulling them off.”

Don’t rely on a co-fiduciary. “Hiring a co-fiduciary doesn’t keep you from being an ERISA fiduciary,” he said. “Co-fiduciary is not a term you hear much today, but a while back, it was trendy. Many people who hired a co-fiduciary felt like they had made a major step in terms of insulating themselves from liability. If a fiduciary knowingly participates in another fiduciary’s breach of financial responsibility, conceals that breach or does not take steps to correct it, you are going to be just as liable as they are.”

Don’t walk away. “As a fiduciary, you can’t just quit and walk away,” Adams said. “The Labor Department has said that fiduciaries who no longer want to serve in that role cannot simply walk away from their responsibilities, even if the plan has other fiduciaries. They need to follow plan procedures and make sure another fiduciary is carrying out the responsibilities that would be left behind. It is critical that a plan has fiduciaries in place so it can continue operations and that participants have a way to interact with the plan.”

The key is to make sure people are not going to get hurt by you not being there, Reish said.

Liability is personal. “In that sense, it goes beyond what you might see in a lot of corporate liability obligations,” Adams said. “You can buy extra insurance to guard against that personal liability. People often think corporate insurance that is available to employees will be enough, but it’s not.”

Be an expert. “As an ERISA fiduciary, you are expected to be an expert,” he said. “Sometimes people find themselves in this role accidentally. But if you can’t be an expert, then you are expected to hire somebody who is. Remember ERISA’s prudent man rule. You have to reach informed and reasoned decisions consistent with that standard.”