The end of the year is an important time for retirement plan sponsors to review plan documents and plan operations. Discretionary changes as well as amendments for compliance must be properly reflected in plan documents. Experts remind plan sponsors that checking in with service providers and reviewing communications to participants are also best practices as the year winds down.
Changes Made To Plan?
For retirement plan sponsors, year end means it’s time to “button up” on any changes that have been made to the plan. As Elizabeth Drake, a principal at Groom Law Group sums up: “The most significant end-of-year responsibility for plan sponsors is to ensure that any changes made to plan design, contribution rules and/or distribution provisions, including any in-service withdrawals for employees, is reflected in the plan documents.”
Indeed, many retirement plan sponsors have been thoughtfully engaged in plan design adjustments to address the shifting needs, interests and concerns of participants—and provide benefits that aid in the recruitment and retention of talented staff. Experts remind us to ensure changes are addressed in plan documents:
These discretionary changes may include plan design changes…changes in plan administration impacting the plan document, and changes to plan provisions pursuant to collective bargaining agreements. An earlier deadline applies to plan sponsors who choose to adopt a 401(k) safe harbor plan design for 2022, using a 3% nonelective contribution. The safe harbor plan provisions must be adopted, and disclosures provided to participants, at least 30 days before the end of the plan year (e., by December 1, 2022 for calendar year plans).
ERISA experts also remind plan sponsors to carefully review plan operations
“to determine whether conforming plan amendments may be required” and offer detailed information on amendments here. If reviewing plan documents and operations reveals the possibility on non-compliance, obtaining legal guidance and proactively utilizing the Employee Plans Compliance Resolution System (EPCRS) (Rev. Proc. 2021-30) is the recommended course of action.
Adherence to legally required participant communications is essential throughout the year—and year-end is a good time to review for accuracy. Examples of required communications include 401(k) safe harbor notices, QDIA/automatic enrollment notices and fee disclosures. The Groom Law Group reminds plan sponsors to ensure notifications “are compliant in form and are being provided by the applicable deadlines using the appropriate delivery method. Plan sponsors should also review participant communications, and remember to provide an updated summary plan description (or summary of material modifications) for any material plan changes within 210 days after the end of the year.”
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Strong Administrative Policies
In addition to ensuring that changes—whether required or discretionary are reflected in the plan document, plan sponsors should also take time at the end of the year to review, update or put in place strong administrative policies. Foley & Lardner point out that a variety of policies are required under ERISA or via specific Department of Labor guidance, while other policies, though not required are critical in the event of government audits or participant lawsuits. Lawyers suggest: “Having clear policies and procedures in place also helps employees involved in plan administration do their job more efficiently by mapping out appropriate steps to take when various situations arise.” In addition to an investment policy, it is advisable for 401(k) plans to also have these policies and procedures: Investment Policy; Loan Policy; QDRO Procedures; Cybersecurity Policy and Procedures; Missing Participant and Uncashed Check Procedures.
Good To Do: Renew!
As the year ends, it is also essential for plan sponsors to ensure their ERISA bond is current and adequately covers the plan. The DOL mandates ERISA fidelity bonds to protect the assets of the retirement plan from theft. Uniquely, Colonial includes retroactive ERISA fidelity bond coverage for years when the plan was not adequately covered. Additionally, plan sponsors can opt for cost-saving multi-year coverage, ensuring the ERISA bond remains Department of Labor compliant for the life of its term.
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