Connections for Success

 

08.27.19

Time for Class: Widening the Scope of Training for Retirement Plan Committee Members
Michael Kovacs

Learning the ropes of overseeing a retirement plan isn’t a “one and done” exercise. Periodic training updates for retirement plan committee members acting in a fiduciary capacity is a prudent approach ensuring that they maintain the current knowledge essential to carry out their duties. More fundamental is ensuring that new committee members get a strong grounding in plan operations and their responsibilities promptly on being appointed to a plan committee, if not before.

Topics to cover

In the beginning of their tenure, new plan committee members are often in the vulnerable position of not even knowing the topics they need to learn, let alone already knowing the essential information they need to possess within those topic areas. The good news is that most plan committee members are given some formal fiduciary training on joining the committee. However, fewer receive follow-up training on a regular schedule.

In the past, fiduciary training often focused almost exclusively on overseeing plan investment performance and investment manager selection. Today, fiduciary training is often broader in scope, covering responsible supervision of all plan vendors and operations. The Plan Sponsor Council of America (part of the American Retirement Association) offers a training course on fiduciary training. Some topics covered in that course that companies should consider presenting to their committee boards include:

  • ERISA and the Fiduciary Role
    Be sure your committee members know how they become a fiduciary, fiduciary roles and when they are and are not acting as a fiduciary. Review fundamental duties, consequences of fiduciary breach and limiting fiduciary liability.
  • Selecting and Monitoring Service Providers
    Highlight parties in interest and prohibited transactions under ERISA, the service provider exemption, plan versus settlor expenses, fee disclosure requirements, scope and the solicitation process.
  • Participant Communications
    Discuss reporting and disclosure requirements, fundamental fiduciary duties, fee disclosures, participant education and advice.

Other fiduciary topics to cover include federal ERISA enforcement priorities, highlights of recent landmark court rulings and plan fee categories, including allocation methods and revenue sharing.

Liability reminders

Retirement committee members are generally conscientious in their efforts to fulfill their fiduciary obligations to participants, even without fully weighing the adverse consequences should they fall short. Nevertheless, remind members what such penalties can be. For example, a plan loss attributable to a fiduciary’s negligence can result in plan committee members being held personally liable for a substantial portion of the loss. “Prohibited transaction” violations, inadvertent or otherwise, also can trigger large civil penalties against offenders up to 100% of the amount involved. Although not required by the Department of Labor, many plan sponsors adopt a committee charter to outline the committee’s responsibilities. Committee members then sign the charter, stating acknowledgment and acceptance of their fiduciary responsibilities.

The doctrine of “procedural prudence” plays a large role in ERISA enforcement agencies and courts (see “Ponder the True Meaning of Prudence” below). Educate members on procedural prudence, the duty of loyalty, lines of authority and decision making dynamics. Plan committee members and other fiduciaries who diligently follow organized processes for decision making, even when bad results occur, often avoid penalties.

It is worth the cost

It is more than worthwhile to put in the extra training for your plan’s committee members. And remember, as in other areas of education, online learning platforms for self-paced retirement plan committee/fiduciary training can help eliminate the potential learning impediment of schedule conflicts.

Sidebar: Ponder the true meaning of prudence

A foundational concept in ERISA governing retirement plan fiduciaries is the “prudent man rule.” This requires fiduciaries to perform their duties “with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.”

But does that mean fiduciaries should, essentially, follow the herd? Tom Brakke, an investment advisor, educator and ERISA commentator, has posed that question in a recent blog post. Such herd mentality can be problematic, Brakke asserts, if the herd is moving in the wrong direction. For example, in the face of lower bond yields, many investment managers have sought to boost returns on pension portfolios by investing in more risky securities.

According to Brakke, fiduciaries discussing what constitutes prudence is not enough. Prudence, he maintains, “comes from exploration and examination, marked by acuity and practical wisdom.” This sets the bar higher than what Brakke characterizes as “prudence by rote,” consisting merely of running through checklists. While checklists can be helpful for fiduciaries, they can be too rigid for the real world.

For more information, contact Mike Kovacs at mkovacs@orba.com or 312.670.7444. Visit orba.com to learn more about our Employee Benefit Plans Services.

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