Fumbling the Fiduciary Ball
As we talked about in our last blog, lots of problems can arise when an employer fails to read his plan document, and/or to completely understand it. The reasons for this are manifold, but here are a few examples of the problems that can result from such fumbles … and what Pentegra did, as the 3(16) administrator, to fix them.
The Audit in Arrears
The Employee Retirement Income Security Act of 1974 (ERISA) requires annual audits of plan financial statements by an independent qualified public accountant of plans subject to the provisions of ERISA. This requirement is applicable to plans with 100 or more eligible participants at the beginning of the plan year.
By definition, then, such an audit is not required for plans with fewer than 100 eligible participants (although it is still not a bad idea for them as well). The problem we ran into with one client was that they had 72 participants in their plan – but well over 100 who were eligible.
The client had become annoyed with the prior plan provider and advisor, especially as they had been working with the client’s HR department to improve participation. The issue was considerably complicated by the fact that the plan had never had an audit.
When this came to light, the employer had to go back 10 years to properly address the situation — and it cost them $100,000.
According to Pentegra’s National Director, Third Party Administrator (TPA) Markets David Barrer: “When this happens, and it’s more often than you would think, the employer has excluded people that cannot be excluded, or has excluded non-participating but still eligible employees. If an employer only reports actual participants to the TPA, many of those TPAs don’t check. We insist the sponsor report all employees to us — even those they may believe are not otherwise eligible.”
In other words, a trusted, reliable TPA will go that extra mile to avoid potential future headaches when it comes to who is eligible (not to mention many other factors).
Failure to Launch Deferrals
In another case a plan sponsor had failed to start a participant’s deferrals on time. A 401(k) plan document should contain a definition of “employee” and provide requirements for when employees can become plan participants eligible to make elective deferrals. Employers can sometimes assume the plan doesn’t cover certain employees, such as part-timers; in other instances, employees who elect not to make elective deferrals are often mistakenly treated as ineligible employees under the plan when other plan contributions are made and tests run.
To reduce the risk of omitting eligible employees, the sponsor should ensure the accuracy of employee data such as dates of birth, hire and termination; number of hours worked; compensation for the year; 401(k) election information and any other information necessary to properly administer the plan.
As outlined by the Internal Revenue Service (IRS), an employer who has failed to correctly handle deferrals may need to take action through the IRS Correction Program, the details of which depend upon how long the contributions were missed.
Even with a 3(16) TPA like Pentegra, the employer still retains such duties as:
- Ensuring what contributions are made to the plan, maintaining timely remittance of contributions, and making sure that all other census data remitted is accurate
- Appointing and monitoring service providers that they have hired, such as Pentegra
- Understanding that Pentegra would not monitor that an employee is actually receiving contributions, only that the contributions are made in a timely fashion.
In this case we confirmed with the former TPA that they send out alerts to the plan sponsor via e-mail on any deferral changes that had been made, whether online, via an uploadable file, or written instruction received by the former TPA. The e-mail would be sent to the plan sponsor’s e-mail address that is on file. If that e-mail goes to a person who does not handle the payroll and does not forward it to their HR department, then such changes could easily be missed.
We would recommend that the employer make sure that the appropriate people are receiving the notifications – additional personnel should be added to receive those notifications if necessary.
If the employee enrolls online and makes their election online, and the feedback file is going to the employer, Pentegra would be copied as the 3(16) — and then would have taken the appropriate action in a timely manner.
Waste Not, Want Not
This phrase was the surprising moral to another unfortunate story. One of our staff tells the sorry tale:
“I had a meeting with the CFO of a large physician practice, a long-time client of a prior company I worked for. Our conversation bounced around but at one point it landed on the delivery of required notices. I asked him how he was handling this — paper or was he using electronic delivery? He looked at me sort of funny and said, ‘I delete them.’
“I wasn’t quite sure what he meant so I tried to get some clarification: ‘When you say you delete them, what exactly are you deleting?’ He told me that he gets the emails my company sent with the required notices and delivery instructions … but he assumed we were handling them. We were not.”
The lesson here should be self-evident: If in doubt, re-read your plan document – or at least consult with your 3(16) fiduciary.
Planting the Seed of Doubt
“We were doing a document review for a large seed company, which had over 300 employees and a very sharp, capable HR department,” one of our staff recalls. “During the review, our team noted the plan document included auto enrollment to which the Director of HR responded, ‘Yes, but we’ve never used it’.”
If that does not set off alarm bells, it should. When a provision is included in your plan document, it is not optional. This situation required a multiple-year review of all employees hired and documentation as to whether the employee was in the plan or, if not, if the employee had affirmed their desire to not participate in the plan.
It’s not just the correction but also the time and disruption these types of mistakes cost the employer.
“Faith is believing what you know ain’t so.” — Mark Twain
That quote was invoked by another Pentegra staffer when recounting a discussion he once had with a physician group. “They were very confident they did not fall under the Title I requirements of ERISA,” he recalled. “The practice had outsourced all non-physician employees, and all the physicians were made partner after one year in the practice.
“The eligibility for their plan was one year,” he continued, “so, by their calculation, they had no employees.”
This would seem to follow ERISA Section 2510.3-39(c)(2): “A partner in a partnership and his or her spouse shall not be deemed to be employees with respect to the partnership.” However, even though the plan in this case would not be subject to ERISA because no employees were covered, it still must satisfy all the applicable requirements of the IRS Code in order to qualify for employee benefit tax breaks.
“While I was speaking with their practice manager, who was a contract employee, I was also reading through their adoption agreement, which clearly stated they had a six-month eligibility requirement,” our advisor continued. “When I pointed this out, the practice manager again said, ‘No, it’s a 12-month eligibility requirement.’ I asked him if what I was reading was in fact the most up-to-date adoption agreement … and it was.
“Needless to say,” he concluded, “they had a problem that required fixing.”
Look for more tales in our next blog. Until then, read your plan document!
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