ML BeneBits

The US Department of Labor (DOL) issued a press release on September 6, 2024 reminding ERISA plan fiduciaries that it considers cybersecurity to be an area of “great concern” and emphasizing that it continues to investigate potential cybersecurity-related ERISA violations. The press release accompanied guidance updating the DOL’s 2021 cybersecurity subregulatory guidance and, most significantly, clarifying that the 2024 updates apply to all types of ERISA plans, including health and welfare plans. In our view, this clarification now aligns the DOL’s cybersecurity guidance with the position it has taken in investigations and public statements.

A recent ruling by the US Court of Appeals for the Third Circuit provides a valuable reminder for multiemployer pension funds and contributing employers regarding ERISA’s withdrawal liability notice and demand requirements. Specifically, the case presents a recap of what it means for a notice and demand to be provided “as soon as practicable” under ERISA Section 4219(b)(1) and the interplay of that timing requirement with common defenses raised for withdrawal liability demands that are allegedly less than timely.

Employers utilizing class-based criteria to exclude employees from retirement plan participation face new issues and considerations following the adoption of the long-term part-time employee (LTPTE) rules in SECURE 1.0 and SECURE 2.0. Employers who have not done so already may want to evaluate their plan's eligibility rules to determine whether any updates or clarifications may be desirable.

In connection with a merger, acquisition, or other corporate (M&A) transaction, buyers often face the dilemma of how to handle the seller’s existing retirement plans covering the continuing employees. Terminating a seller’s existing retirement plan can be complicated if the seller maintains a Savings Incentive Match Plan for Employees (SIMPLE) IRA plan because the “exclusive plan rule” under Section 408(p)(2)(D) of the Internal Revenue Code (Code) provides that a SIMPLE IRA plan may not be maintained for a calendar year if the employer maintains a qualified plan for that calendar year.

The backbone of a fiduciary’s duties is the written plan document: understanding the key terms and adhering to them provides a bulwark against fiduciary breach. ERISA Sections 402(a)(1) and 404(a)(1)(d) require that every employee benefit plan be established and maintained pursuant to a written instrument and that the plan be administered according to its written terms (note fiduciaries must follow a written plan document only to the extent it is consistent with ERISA.) Veering from the plan’s terms is generally a per se violation of ERISA. The key to avoiding a costly breach of fiduciary duty is to stick to the plan.

Join Morgan Lewis lawyers this summer for programs on employee benefits and executive compensation.

The Internal Revenue Service (IRS) recently extended relief with respect to certain post-death required minimum distributions (RMDs) under Internal Revenue Code Section 401(a)(9).

The US Department of Labor (DOL) maintains a robust investigatory program for auditing employee benefit plans for potential ERISA violations. Under the Biden administration, the DOL’s ERISA enforcement activities and investigations have remained a high priority. As such, ERISA plan fiduciaries and service providers can expect the DOL to continue its ever-evolving enforcement program targeting both fiduciaries and nonfiduciary service providers.

While the US Department of Labor’s (DOL’s) recently proposed regulations regarding automatic portability transactions would place the onus of compliance on transfer providers, a number of the provisions would trigger ERISA fiduciary considerations for plan administrators of defined contribution plans that offer these automatic portability transactions, particularly “transfer in” plans.

Recent headlines involving the Central States Teamsters Pension Fund and the Pension Benefit Guaranty Corporation’s (PBGC) Special Financial Assistance (SFA) Program highlights an issue with meaningful consequences for multiemployer defined benefit plans—unreported deceased participants. In fact, PBGC’s alleged overpayment of $127 million under the American Rescue Plan Act’s SFA Program covering an estimated 3,500 deceased participants sparked PBGC to implement specific death certification measures for future applicants to the SFA Program.