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ERISA Tips: Avoid Violating ERISA Section 404(a)(1)(D) Plan Document Duties

Editor’s Note: ERISA Tips is a feature provided with you in mind — to make the newsletter more useful to you! If you have any content for ERISA Tips or the 403(b) Advisor that you would like to contribute or suggest, please contact John Iekel, editor of the 403(b) Advisor, at [email protected].

The following information is derived from “Those Pesky Plan Documents…What Do They Have To Do With my Fiduciary Duties?,” an article by Deborah Fabricant that appeared in Boutwell Fay LLP’s Benefits News blog.

How can a fiduciary avoid violating the ERISA Section 404(a)(1)(D) plan document duty?

Boutwell writes that there are some concrete steps that can be taken in order to avoid violating fiduciary plan document duties:

Identify governing plan documents. She suggests asking oneself questions may help in this process, including:

  • Which documents are the current plan documents?
  • Are plan amendments that have never been signed governing plan documents?
  • Will other documents, such as investment policy statements, QDRO policies, loan procedures and other decrees affecting benefits and beneficiary designations be considered governing documents?
Review governing plan documents. Fabricant writes that one should remember that even when plan fiduciaries know the scope of the governing plan documents, they have a duty under ERISA Section 404(a)(1)(D) to review them to determine if they comply with ERISA.

Consider whether less may be more. Fabricant suggests that plan fiduciaries consider whether the notion that “the less you say the better” may apply to plan documents. She suggests that detailed provisions, such as specific investment allocations, may restrict as fiduciary, and that being mindful of ERISA Section 404(a)(1)(D) when a document is being drafted and reviewed may prevent difficulties for a fiduciary in the future.