In recent years, many employee benefit plan sponsors have hired independent ERISA 3(16) administrators in an effort to divest themselves of plan administration responsibilities.
This can be a smart move for sponsors who don’t have an in-house expert who is well-versed in all the details and nuances of ERISA compliance. However, it’s important to remember that outsourcing plan administration does not relieve sponsors of their fiduciary duty, as some sponsors mistakenly believe.
Plan Administrator Responsibilities
According to ERISA Section 3(16), an employee benefit plan administrator is responsible for daily operations of the plan and for signing the annual Form 5500.
The plan administrator should be identified in the plan document. If the document is not specific in naming an administrator, the plan sponsor is considered to be the administrator from a 3(16) fiduciary perspective. The specific responsibilities of the plan administrator as detailed by ERISA Section 3(16) include the following:
1. Managing the plan’s investment menu. This includes investment selection and monitoring. As a sponsor, you can hire an ERISA Section 3(21) or an ERISA Section 3(28) investment provider to monitor funds and make investment recommendations if you don’t have the necessary education and expertise.
2. Overseeing plan administration. This includes maintaining and interpreting the plan document, overseeing plan operations, providing benefit statements and required disclosures to participants, ensuring timely deposit of participants’ contributions into their accounts, and complying with required government reporting.
3. Engaging plan service providers. If you outsource some plan functions to one or more service providers, you must oversee their performance and monitor their fees to ensure that they’re reasonable.
Limitations of 3(16) Administrators
Independent ERISA 3(16) administrators may accept responsibility for one or more of these duties. Their fee is usually based on the size of the plan or the amount of plan assets. However, independent administrators generally will not agree to be named the plan administrator in the plan document or to sign Form 5500.
In other words, they only take ERISA Section 3(16) responsibility for the duties that are detailed in their contract. You as the plan sponsor would retain responsibility and fiduciary liability for administering all other plan duties, as well as monitoring the prudence of the Section 3(16) administrator selection.
To do this, you need to evaluate such factors as:
- The 3(16) administrator’s qualifications and the reasonableness of fees charged.
- The quality of services the 3(16) administrator provides.
- The potential for conflicts of interest between the 3(16) administrator and any other outsourced service providers you use.
- The capacity of the 3(16) administrator to pay any legal claims that may arise in connection with a breach of 3(16) plan duties.
You should also look carefully at the contract to see if there are any caveats that limit the 3(16) provider’s fiduciary responsibility. Most of the administrative duties the provider takes on are conditioned on receiving timely and accurate payroll and census data. Therefore, providers usually seek to limit their liability if they don’t control the generation of this data.
The Bottom Line
As a plan sponsor, you cannot avoid fiduciary responsibility and potential ERISA liability simply by hiring an independent ERISA 3(16) administrator. Such an administrator does not possess the data and authority needed to act in a full-scope Section 3(16) capacity.
In fact, the very act of hiring an independent administrator is a fiduciary function. Failure to monitor the 3(16) provider’s performance—and terminate the provider if performance is sub-standard—is a breach of ERISA fiduciary duty.
Please contact our team at 512.610.7200 if you have more questions about the role of an independent ERISA 3(16) administrator.