ERISA Bonding - Not as Easy as it Looks

Separating ERISA bonds from fiduciary liability insurance

Source: http://roughnotes.com

By Michael J. Moody, MBA, ARM

The Employee Retirement Income Security Act (ERISA) has been the law of the land since 1974, with regard to employee benefits. Its specific purpose is to protect the assets of millions of American workers so that funds are available when they retire. It's a federal law that, in essence, sets minimum standards for private company pension plans. Most of its requirements took effect on January 1, 1975. While it does not require corporations to create pension plans, it does establish minimum standards for those that do start pension plans.

For the most part, the key sections of the law have remained as they were in 1975. One section (Section 412) has been a source of concern for employers and their insurance agents because it deals directly with the Act's bonding requirements. In response to numerous requests, the Department of Labor, which oversees ERISA, published a Field Assistance Bulletin (#2008-04) that addresses a number of issues surrounding the bonding requirements. While the Bulletin is helpful in understanding the requirements, it was not meant to change any existing parts of Section 412. The Bulletin provides a set of 42 questions and answers that address many of the areas where employers have requested further clarification.

ERISA Bonding 101

At the most basic level, the bonding requirements are pretty straightforward. The Act, for example, requires that "every fiduciary of an ERISA-covered employee benefit plan and every person who handles funds or other property of such plans must be covered by a bond." There are, however, a number of exceptions to this requirement, as there are with most of the other specific requirements and, as such, are beyond the scope of this article. What follows, however, are a number of requirements that generally apply in all situations.

Bond limits must be issued for at least 10% of the amount of the funds handled, subject to a minimum limit of $1,000 per plan and a maximum of $500,000 per plan.

Several other points to keep in mind regarding the bonding requirements:

• Bonds cannot be obtained from just any bonding or insurance company. They must be placed with a surety company or reinsurer that is listed by name on the IRS's Listing of Approved Sureties as noted in IRS Department Circular 570.

• No plan or party-in-interest may have any control or significant financial interest in the surety or reinsurer, or in an agent or broker who arranges for the bond.

• Bonds must be written for a minimum of one year. Additionally, the bond must also have a one-year period after termination to discover losses that occurred during the original term of the bond.

• Coverage from the bond must be from the first dollar of loss; thus, the bond cannot have a deductible feature.

• An employee benefit plan can be insured on its own bond, or it can be added as a named insured to an existing employer bond as long as it satisfies ERISA's minimum requirements.

Other than the requirements noted above, the DOL allows quite a bit of flexibility with the bond. For example, a plan may be covered under a single bond or one bond that covers multiple plans. Permissible bond forms can range from individual, named schedule, position schedule or even a blanket bond.

Potential trouble spots

One area of considerable confusion that has continued to exist since the original Act was passed is the difference between an ERISA bond and fiduciary liability insurance. ERISA bonds are in fact fidelity bonds that protect the plan against fraud or dishonesty by individuals who handle plan assets. These bonds are a specific requirement of the ERISA legislation. On the other hand, fiduciary liability insurance generally protects the employer and/or fiduciaries from losses due to a breach of fiduciary duty. While fiduciary liability insurance is not a requirement under ERISA, many employers have chosen to provide this important coverage in their corporate insurance portfolio. To complicate the situation further, the insurance industry offers both the bond and fiduciary liability coverage under a single policy. While this type of comprehensive protection is very useful, it needs to be remembered that only the bond is required under ERISA. Additional coverages are available at the discretion of the employer.

Due in large part to the types of risks involved, there are few risk mitigation strategies that can be employed to lower the risk of loss. However, one method of risk mitigation that is being used and suggested by some consultants revolves around "credentialing" of all internal personnel and outside service providers. Typically this approach will require an approval and adoption of a written policy statement. The key element would be conducting criminal background checks and other prudent investigations to reconfirm the suitability of individuals serving in fiduciary positions or otherwise acting in a capacity covered by ERISA's bonding requirements. Care should be taken to comply with the applicable notice and consent requirements for conducting third-party background checks under the Fair Credit Reporting Act and other applicable laws.

While this may initially appear to be overkill, it should be remembered that ERISA generally prohibits individuals convicted of certain crimes from serving as plan fiduciaries. Further, it also prohibits plan sponsors, fiduciaries or others from knowingly hiring, retaining, employing or otherwise allowing these convicted individuals to handle plan assets for the 13-year period after the later of their conviction or the end of their imprisonment.

Additionally, the credentialing process should also include a review that verifies the sufficiency and adequacy of the bonding that is in effect for both internal personnel as well as outside service providers. Unless a service provider can provide a legal opinion that adequately demonstrates that an ERISA bonding exemption applies, plan sponsors and fiduciaries should require the third-party service provider to provide proof of appropriate bonding that is in compliance with ERISA and other appropriate laws.

Conclusion

While there are some exceptions to ERISA's bonding requirements, the fact remains that a bond is required for every pension plan. The bond must extend coverage to those persons whose position requires them to come in direct contact with or exercise discretion over plan assets. Further, the bonds must be in amounts and form acceptable to the DOL. They must comply with all the provisions as outlined in Section 412 of the ERISA legislation.

Fiduciary liability insurance is not required by ERISA, but it can provide agents and brokers with an excellent opportunity to broach the subject with an employer. Losses following the recent financial crisis have increased, and today's fiduciary liability policies offer a variety of coverage enhancements and can provide an employer with a number of advantages, while covering many gaps in their corporate insurance programs. Becoming a key knowledge source for employers in a narrow area such as this can be a real door opener for any agency.

 


Correcting Operational Mistakes Can Eliminate Fiduciary Liability

Over the past decade, plan sponsors have become familiar with the voluntary correction programs offered by the IRS and Department of Labor, including the Service’s Employee Plans Compliance Resolution System (EPCRS) and the DOL’s Voluntary Fiduciary Correction Program (VFCP). These programs offer formal ways for sponsors to correct certain administrative errors in the operation of their plans. Even if employers choose not to avail themselves of these formal programs, however, correcting administrative mistakes can eliminate the risk of fiduciary liability under ERISA.

Operational errors in administering a retirement plan not only threaten the plan’s “qualified” status under the Tax Code, but can also result in fiduciary liability under ERISA for those who are responsible for the errors. One of the primary duties imposed on ERISA fiduciaries is to administer the plan “in accordance with the documents and instruments” governing it. Failing to do so is a violation of that fiduciary duty, which can lead to personal liability. And administrative errors almost always involve a failure to comply with a plan’s terms.

A Massachusetts employer recently prevailed on a fiduciary breach claim because the employer had voluntarily corrected its administrative error. In this case, Altshuler v. Animal Hospitals Ltd., the employer had failed to timely remit an employee’s salary deferral contributions to its SIMPLE 401(k) plan. After learning that several months of her contributions had not been deposited into the plan, Ms. Altshuler complained to the company’s president. The company voluntarily corrected its error by making all of the outstanding contributions, plus interest, and then fired Ms. Altshuler. She filed suit against the employer under ERISA, claiming (among other things) that the company breached its fiduciary duty to promptly deposit employee contributions, as required by the plan document.

The court ultimately determined that the employer had, in fact, breached its fiduciary duty under ERISA. It also ruled, however, that because the employer had already made the delinquent deposits – and thus had made the participant “whole” – the participant was not entitled to any remedy. Ms. Altshuler had been given everything to which she was entitled under the plan (the contributions and earnings), and the limited scope of remedies available under ERISA precluded her from receiving anything else from the company. Thus, although the company’s voluntary correction of its administrative error did not excuse the resulting fiduciary breach, it effectively insulated the company from liability.

Gregory L. Ash, Partner
Spencer Fane Britt & Browne LLP