On January 12, 2021, the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) released valuable guidance for plan fiduciaries in meeting their obligations under Title 1 of the Employee Retirement Income Security Act of 1974 (ERISA) relating to the location and distribution of retirement benefits to missing or nonresponsive participants in defined benefit and defined contribution plans. The DOL EBSA provided its guidance in three parts: Best Practices for Pensions, Compliance Assistance, and Field Assistance. Each provides detailed information that will help plan fiduciaries navigate through this challenging area and meet their responsibilities under ERISA.
According to Principal Deputy Assistant Secretary of Labor for the EBSA Jeanne Klinefelter Wilson, “The guidance issued today reflects our ongoing commitment to help plan fiduciaries ensure that their plan participants and beneficiaries receive the retirement benefits that they worked so hard to earn. In fiscal year 2020 alone, EBSA’s investigators helped missing and nonresponsive participants recover benefits with a present value in excess of $1.4 billion.”
Best Practices for Pensions
In its “Best Practices” guidance (https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/retirement/missing-participants-best-practices-for-pension-plans), the DOL EBSA outlines steps plan fiduciaries should implement to help alleviate missing participant issues and to ensure plan participants receive their benefits upon reaching retirement age. These best practices highlight common indicators that a missing participant problem exists. These include:
- More than a small number of missing or nonresponsive participants;
- More than a small number of terminated vested participants who have reached retirement age but have not started receiving their pension benefits;
- Missing, inaccurate, or incomplete contact information, census data, or both
- Absence of sound policies and procedures for handling returned mail marked “return to sender,” “wrong address,” “addressee unknown,” etc.; and
- Absence of sound policies and procedures for handling uncashed checks (e.g., indicated by the absence of an accounting journal or similar record of uncashed checks)
Among the DOL ESBA’s suggested best practices are:
- Maintaining accurate census information for the plan’s participant population;
- Implementing effective communication strategies;
- Conducting missing participant searches, and
- Documenting procedures and actions.
The DOL EBSA provided its guidance to plan fiduciaries on meeting ERISA obligations pertaining to missing participants in a news release issued on January 12, 2021. (https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/retirement/compliance-assistance-release-2021-01) It focuses on the practices of the EBSA Regional Offices which conduct Terminated Vested Participants Project (TVPP) audits and the goal of helping to facilitate plan fiduciaries voluntary compliance. Outlined are the primary goals, which include ensuring that plans maintain adequate census and other records for determining such factors as the identity and address of participants and beneficiaries who are due benefits under the plan, the amount of benefits due, and when participants and beneficiaries are eligible to commence benefits.
Another goal is to ensure that proper procedures for advising participants of the best-accrued benefits options based on their eligibility. In addition, to remind them to apply for benefits as they approach retirement age and the date they must start required minimum distributions under federal tax law. Additionally, the agency seeks to ensure that the appropriate search procedures are implemented for terminated participants and beneficiaries for whom incorrect or incomplete information exists.
The compliance guidance discusses how investigations are opened and conducted by the Regional Offices and the information that is requested. This includes: the plan document (i.e., Summary Plan Description) and amendments indicating the plan’s distribution rules and assessing their compliance with ERISA; participant census records noting the employment status of each participant and their contact information; actuarial reports to understand the plan’s demographics; the plan’s procedures for communicating with terminated vested participants, spouses and other designated beneficiaries; and information to determine whether the plan takes sufficient steps to address missing participant issues when they arise.
In its Field Assistance Bulletin (https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2021-01), the DOL announces its temporary enforcement policy regarding terminating defined contribution plans’ use of the Pension Benefit Guaranty Corporation’s (PBGC) expanded Missing Participants Program which applies to fiduciaries of terminating defined contribution plans and qualified termination administrators of abandoned individual account plans. It outlines DOL regulation (29 CFR 2550.404a-3) which provides a fiduciary safe harbor for use in making distributions from terminated individual account plans based on section 3(34) of ERISA, and abandoned plans based on 29 CFR 2578.1 on behalf of participants and beneficiaries, including missing participants, who fail to make an election regarding a form of benefit distribution.
Also presented in the bulletin is information prompted by the COVID-19 crisis and related disruptions to recordkeeping and search activities. Covered is the DOL’s temporary enforcement policy relating to violations under section 404(a) of ERISA against “responsible” plan fiduciaries or qualified termination administrators of terminating defined contribution plans. Information and guidance are also provided regarding plan transfers, PBGC fees for certain accounts transferred to the PBGC Defined Contribution Missing Participants Program and, the option for plans that elect not to transfer account balances of missing participants to the PBGC to notify the PBGC of the disposition of the missing participants’ account balances.
Amalgamated Employee Benefits Administrators urges all plan fiduciaries to view this important guidance from the DOL EBSA and to contact to us with any questions or concerns regarding your plans.