Plan sponsors and employers face an issue with the portability of employees’ retirement plans. When the employee leaves, but doesn’t take their retirement fund, the plan often transfers the funds to an IRA. After five years, the company administering the retirement account automatically sends the IRA funds to the retirement account sponsored by the employee’s new employer, if it can be found. Such auto portability programs raise concerns about the fiduciary status of plan sponsors and others acting on behalf of the plan.
Background – The Request
Retirement Clearinghouse, LLC (“RCH”) requested an opinion regarding its Auto Portability Program. Specifically, RCH was concerned about whether certain parties involved in the program were considered fiduciaries under ERISA and Section 4975(e)(3) of the Internal Revenue Code (Code). The auto portability program provides a way to transfer prior employee’s IRAs into their new employer’s 401(k) plans without gaining their expressed consent.The DOL’s Response
According to an advisory opinion letter issued by the Department of Labor (DOL), plan sponsors or other fiduciaries dealing with the plan typically are subject to the usual fiduciary standards and transaction prohibitions of ERISA when choosing and managing the RCH program. Fiduciaries must:- Always act in the best interests of the plan participants and beneficiaries.
- Have one purpose: to provide benefits and defray administration expenses.
- Comply with all documents and instruments consistent with ERISA, Titles I and IV.
- Ensure the RCH program is necessary and reasonable.
- Ensure that compensation is reasonable according to ERISA section 408(b)(2) and Code section 4975(d)(2).
- Evaluate the RCH program’s services and service providers.
- Determine that services are appropriate and helpful to the continuation of the plan.
- Monitor the arrangement, ensuring that the plan’s participation in the RCH program complies with ERISA.
