New Department of Labor Guidance on Electronic Disclosures

New Department of Labor Guidance on Electronic Disclosures

by Edward I. Leeds and Clifford J. Schoner

The Department of Labor has published an interim policy describing how fiduciaries may use electronic media to meet new DOL requirements, which will take effect this spring. The policy, set forth in Technical Release 2011-03, describes when and how fiduciaries may electronically disclose fees and expenses under retirement plans offering participant-directed investment. For more information about these new fiduciary requirements, click here

The policy retains existing rules governing the disclosure of information provided through a pension benefit statement. Beginning this spring, pension benefit statements will need to include additional information because of the fiduciary disclosure rules, but may continue to be provided electronically in accordance with current safe harbor guidelines or made available through continuous access to a Web site, provided the plan meets the relatively simple requirements described in Field Assistance Bulletin 2006-3.

With respect to the electronic disclosure of information furnished outside of the pension benefit statement, the policy provides a new alternative to existing safe harbor guidance.  Plan administrators may electronically disclose this information to participants and beneficiaries who voluntarily provide an e-mail address for the purpose of receiving disclosures if the plan administrator:

  • Provides participants and beneficiaries with initial and annual notices that meet specified requirements;
  • Takes appropriate measures to confirm that individuals are actually receiving the electronic transmissions;
  • Takes appropriate measures to protect the confidentiality of personal information in the electronic delivery system; and
  • Meets other specified requirements.

The policy includes a transition rule for e-mail addresses that have already been provided to the plan administrator. 

 The new interim policy on electronic disclosures expressly states that it applies only to the new fiduciary disclosure rules. Plan administrators should not rely on it for other purposes, but additional guidance is forthcoming. The DOL is conducting a review of its regulations on the use of electronic media for employee benefit plan disclosures, and changes to those regulations are widely anticipated. The interim policy will apply only until the DOL completes its review and revises those regulations.

Ballard Spahr's Employee Benefits and Executive Compensation Group will continue to follow these changes affecting fiduciaries of retirement plans as well as other ERISA developments. If you have questions or concerns, contact Edward I. Leeds, at 215.864.8419 or leeds@ballardspahr.com, or Clifford J. Schoner, at 215.864.8626 or schonerc@ballardspahr.com.

Copyright © 2011 by Ballard Spahr LLP  (No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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