Summary. Almost every company offering a retirement plan has fiduciaries who do not know they are fiduciaries, exercising discretion they do not know is discretionary, without the documented process that is their only real defense. This article separates settlor from fiduciary functions, identifies who becomes a fiduciary by title and by conduct, and works through loyalty, prudence, plan-document compliance, and diversification. It covers prohibited transactions and their exemptions, fee disclosure, the monitoring duty addressed in Tibble and Hughes, excessive fee litigation and the pleading standard, delegation to 3(21) and 3(38) advisers, co-fiduciary liability, correction programs, bonding and insurance, and health plan issues.

A 240-employee engineering firm has a 401(k) plan with $41 million in assets. The plan committee is three people: the CFO, the head of HR, and the founder's son, who joined because he "follows the markets."

They meet twice a year over lunch. There are no minutes. The investment lineup was selected in 2016 by the firm's insurance broker, who receives commissions from two of the funds. The plan uses retail share classes of funds that offer institutional classes with identical holdings at 38 basis points less. Recordkeeping fees are paid through revenue sharing, and nobody has ever asked what they total in dollars.

Nothing here involves theft, self-dealing, or bad faith. Every person on that committee believes they are doing a favor for their colleagues. And every one of them is a fiduciary under ERISA, personally liable for losses to the plan, with a defense that consists entirely of a process they never documented.

That is the ordinary shape of retirement plan fiduciary exposure. It is not a scandal problem. It is a paperwork problem with unlimited personal liability attached.

The short answer

ERISA fiduciary status attaches by function, not by title. Anyone who exercises discretionary authority over plan management, exercises authority over plan assets, renders investment advice for a fee, or has discretionary authority over plan administration is a fiduciary as to that function, 29 U.S.C. § 1002(21)(A).

Four core duties, 29 U.S.C. § 1104(a)(1):

  • Loyalty — act solely in the interest of participants and beneficiaries, for the exclusive purpose of providing benefits and defraying reasonable expenses.
  • Prudence — act with the care, skill, prudence, and diligence a prudent person familiar with such matters would use. This is a professional standard, not a lay one.
  • Diversification — diversify investments to minimize the risk of large losses, unless clearly prudent not to.
  • Plan documents — follow the plan document, to the extent consistent with ERISA.

Personal liability. A breaching fiduciary is personally liable to make good any losses and to restore profits, and may be subject to equitable relief and removal, 29 U.S.C. § 1109. Plan assets cannot indemnify a fiduciary against their own breach, and exculpatory provisions purporting to relieve a fiduciary of liability are void, § 1110.

The defense is process. Courts evaluate the process by which decisions were made, not the outcome. Good process documented contemporaneously is the defense; a good outcome with no process is not.

Settlor functions versus fiduciary functions

The single most useful distinction in ERISA practice, and the one plan sponsors most often miss.

Settlor functions are business decisions about whether and what to offer. They are not fiduciary acts, and the employer may make them in its own interest:

  • Whether to establish, amend, or terminate a plan.
  • The benefit formula, matching contribution level, vesting schedule (within statutory limits), and eligibility conditions.
  • Whether to add a Roth feature, a loan provision, or automatic enrollment.
  • Whether to merge or spin off a plan in a corporate transaction.

Fiduciary functions are decisions about how the plan is run and how assets are managed:

  • Selecting and monitoring investment options.
  • Selecting and monitoring service providers, and negotiating their fees.
  • Deciding benefit claims and appeals.
  • Interpreting ambiguous plan terms.
  • Communicating with participants about the plan.
  • Deciding how to allocate plan expenses.

Why it matters practically. Settlor expenses (plan design consulting, amendment drafting for a design change, the cost of deciding whether to terminate) generally may not be paid from plan assets. Fiduciary and administrative expenses (recordkeeping, compliance testing, the audit, amendments required by law) generally may. Paying a settlor expense from plan assets is a prohibited transaction and a breach.

A recurring trap: the same person, in the same meeting, moves between the two roles. The CFO deciding to reduce the match is acting as a settlor. The CFO deciding which target-date series to use is acting as a fiduciary. Minutes should reflect which hat is on.

Who is a fiduciary

Named fiduciaries are identified in the plan document, § 1102(a). Usually the plan administrator, the sponsor, and a committee.

Functional fiduciaries become fiduciaries by conduct, whether or not anyone intended it. This includes:

  • The committee members, individually.
  • The board of directors, to the extent it appoints and monitors the committee. The board's fiduciary duty is generally limited to appointment and monitoring — but that duty is real, and boards are named in litigation for failing to monitor a committee they appointed and then ignored.
  • An officer who unilaterally selects a provider or directs an investment change outside the committee process.
  • Anyone with discretionary authority over plan assets, including the person who decides which invoices the plan pays.

Not fiduciaries, generally: attorneys, accountants, actuaries, and recordkeepers performing purely ministerial functions without discretion; and a broker selling products at arm's length without giving advice for a fee under the applicable regulatory test.

A common surprise. The payroll employee who decides when to remit employee deferrals to the trust is handling plan assets. Late deposits of participant contributions are among the most frequently cited fiduciary violations on Form 5500 and in Department of Labor investigations. The regulation requires deposit as soon as the amounts can reasonably be segregated from the employer's general assets, with a safe harbor of the seventh business day for small plans, 29 C.F.R. § 2510.3-102.

The duty of loyalty

Section 1104(a)(1)(A) requires a fiduciary to act solely in the interest of participants and beneficiaries, for the exclusive purpose of providing benefits and defraying reasonable administrative expenses.

"Solely" means the fiduciary may not weigh the employer's interests against participants'. Where the employer's interest and the participants' interest conflict, the fiduciary must act for participants or step aside and let an independent fiduciary decide.

Recurring loyalty issues:

  • Selecting a provider because of a banking relationship the sponsor values, rather than on the merits for the plan.
  • Employer stock in the plan, which raises the Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014), framework — no presumption of prudence, but for publicly traded stock a claim based on public information generally fails, and a claim based on inside information must plead an alternative action a prudent fiduciary could not have viewed as more likely to harm the fund than to help it.
  • Using plan assets to pay settlor expenses.
  • Allocating expenses among participants in a way that favors some groups, without a reasoned basis.
  • Choosing an investment lineup that includes the recordkeeper's proprietary funds without independent analysis.
  • Communications that are misleading, including describing an expected future amendment in a way participants rely on. A fiduciary speaking about plan benefits must speak accurately, and misrepresentations can support a claim for equitable relief, CIGNA Corp. v. Amara, 563 U.S. 421 (2011).

The duty of prudence, and what it requires in practice

Section 1104(a)(1)(B) sets an objective standard measured against a prudent person familiar with such matters — effectively, an expert standard. A committee of non-experts satisfies it by engaging experts and by exercising informed judgment over their advice, not by deferring blindly.

What a prudent process looks like:

  1. A charter defining the committee's authority, membership, quorum, and meeting frequency.
  2. An investment policy statement (IPS) stating asset class coverage, selection criteria, monitoring metrics, and the watch-list and replacement process — and then followed. An IPS the committee does not follow is worse than none, because it establishes the standard and proves the deviation.
  3. Regular meetings, at least quarterly, with an agenda.
  4. Contemporaneous minutes recording what was reviewed, what was discussed, what alternatives were considered, and why the decision was made. Minutes that say "the committee reviewed the fund lineup and no changes were made" prove nothing. Minutes that record the specific funds discussed, the peer-group comparisons, the fee analysis, and the reasoning are the entire defense.
  5. Benchmarking of investment performance against appropriate peer groups and indices, over meaningful periods.
  6. Fee analysis in dollars, not just basis points, covering investment management, recordkeeping, advisory, and any revenue sharing.
  7. Share class review — confirming the plan uses the lowest-cost share class for which it is eligible.
  8. Periodic RFPs or benchmarking of service providers, typically every three to five years.
  9. Training for committee members on their duties.
  10. Documentation retention, including the materials the committee relied on, not just the minutes.

The monitoring duty. Tibble v. Edison International, 575 U.S. 523 (2015), is the case every committee should know: a fiduciary has a continuing duty to monitor investments and remove imprudent ones, separate and apart from the duty of prudent selection. That duty carries its own limitations period, so a fund selected fifteen years ago can still support a timely claim if it should have been removed within the last six years.

Hughes v. Northwestern University, 595 U.S. 170 (2022), rejected the argument that offering a diverse menu including low-cost options cures the inclusion of imprudent ones. Participants' ability to choose other funds does not excuse a failure to remove an imprudent option; each investment must be prudent, and the fiduciary must monitor each.

Prohibited transactions

ERISA flatly prohibits certain transactions between a plan and a party in interest, regardless of fairness, § 1106. Parties in interest include the employer, fiduciaries, service providers, unions representing covered employees, and various related entities and owners.

Prohibited party-in-interest transactions, § 1106(a): sale, exchange, or lease of property; lending money or extending credit; furnishing goods, services, or facilities; transferring plan assets to or using them for the benefit of a party in interest; and acquiring employer securities or real property beyond statutory limits.

Prohibited self-dealing, § 1106(b): a fiduciary may not deal with plan assets in its own interest, act on behalf of a party whose interests are adverse to the plan, or receive consideration from a party dealing with the plan.

Because the plan cannot function without buying services from parties in interest, the statute supplies exemptions:

  • § 1108(b)(2) — contracting for necessary services at reasonable compensation, under a reasonable arrangement. This is the exemption that makes ordinary plan administration lawful, and it is conditioned on the 408(b)(2) disclosure regime.
  • § 1108(b)(1) — participant loans meeting the requirements.
  • Class and individual exemptions issued by the Department of Labor.

The 408(b)(2) disclosure regime, 29 C.F.R. § 2550.408b-2, requires covered service providers to disclose their direct and indirect compensation in advance and in writing. A fiduciary that fails to obtain and review the disclosure loses the exemption and has engaged in a prohibited transaction — even though it paid a reasonable fee.

Participant disclosure, 29 C.F.R. § 2550.404a-5, requires annual and quarterly disclosure of plan-level and individual expenses and comparative investment information.

The excise tax. Prohibited transactions also trigger an excise tax under 26 U.S.C. § 4975, reported on Form 5330, in addition to ERISA remedies.

Fees, revenue sharing, and share classes

Excessive fee litigation is the dominant category of ERISA fiduciary claims, and it turns on a small number of recurring facts.

Recordkeeping fees. The relevant question is dollars per participant, not basis points. A plan paying an asset-based recordkeeping fee sees its cost rise with the market while the service does not change. Committees should convert to a per-participant figure, benchmark it, and periodically test it in the market.

Revenue sharing. 12b-1 fees and sub-transfer agency payments embedded in fund expense ratios are used to pay recordkeeping. This is lawful, but it must be understood, disclosed, and accounted for. Best practice is to require the recordkeeper to credit revenue sharing back to participants (an ERISA budget account or a per-participant credit) and to pay an explicit fee.

Share classes. The single most common allegation: the plan used a retail or intermediate share class when it was eligible for an institutional class holding the identical portfolio at a lower expense ratio. There is rarely a defensible reason, and the difference compounds across every participant for every year.

Investment structure alternatives. Collective investment trusts and separate accounts can be materially cheaper than mutual funds at scale, and a committee that has never considered them may struggle to explain why.

Reasonableness is comparative and documented. The duty is not to obtain the lowest possible fee; it is to ensure fees are reasonable in relation to the services. That determination requires a comparison, and the comparison must be in the file.

Excessive fee litigation

The typical complaint alleges that the plan paid excessive recordkeeping fees, used higher-cost share classes, retained underperforming funds, and failed to consider cheaper vehicles. Because plaintiffs rarely have access to committee minutes before discovery, the fight is usually at the pleading stage.

Courts apply Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and they diverge on how much comparative detail a complaint must supply. Hughes itself remanded for a context-sensitive inquiry into the circumstances prevailing at the time of the challenged decisions, cautioning that courts must give due regard to the range of reasonable judgments a fiduciary may make. In practice, complaints that plead meaningful benchmarks — comparable plans by size, with comparable services, at materially lower cost — survive more often than complaints resting on generic assertions that cheaper funds exist.

Defense fundamentals, in order of value:

  1. Contemporaneous minutes showing what was considered and why.
  2. Documented benchmarking at regular intervals.
  3. A followed IPS.
  4. A record of share class reviews and conversions.
  5. RFP history for recordkeeping.
  6. Evidence of independent judgment over adviser recommendations.

Section 404(c), § 1104(c), relieves fiduciaries of responsibility for participants' own investment choices where the plan meets the regulation's conditions. It does not relieve them of responsibility for selecting and monitoring the menu. Committees frequently overestimate what it protects.

Qualified default investment alternatives, 29 C.F.R. § 2550.404c-5, provide similar relief for defaulted participants where the default meets the QDIA conditions — again, without excusing selection and monitoring of the QDIA itself.

Delegation: 3(21) and 3(38)

A committee may reduce but never eliminate its exposure by delegating.

  • A 3(21) investment adviser is a co-fiduciary providing recommendations; the committee retains discretion and decides.
  • A 3(38) investment manager has discretionary authority to select and replace investments and takes on fiduciary responsibility for those decisions, § 1002(38). Properly appointed, the committee is relieved of liability for the manager's individual investment decisions, § 1105(d).

In both cases the committee retains the duty to select and monitor the delegate prudently — reviewing performance, fees, conflicts, and continued qualification. A 3(38) appointment converts an investment-selection problem into a manager-monitoring problem; it does not make the committee's job disappear.

Delegation should be documented: a written appointment, an acknowledgment of fiduciary status in writing, a defined scope, and periodic review.

Co-fiduciary and successor liability

A fiduciary is liable for another fiduciary's breach if it knowingly participates in or conceals it, enables it through its own breach, or knows of the breach and fails to make reasonable efforts to remedy it, § 1105(a). A committee member who disagrees with a decision and says nothing is exposed; the protective step is to voice the objection and have it recorded in the minutes.

In a corporate transaction, plan liabilities follow the structure. In a stock deal, the buyer inherits the plan and its history. In an asset deal, the buyer may still face exposure if it assumes the plan or if a plan merger occurs. IP-style representations do not solve this: diligence should include plan documents, determination or opinion letters, Form 5500 filings, nondiscrimination testing results, correction history, fee benchmarking, fidelity bond and fiduciary insurance, and any open Department of Labor or IRS matters.

Correction programs

ERISA and the Internal Revenue Code both provide self-correction routes, and using them is far cheaper than being found.

  • EPCRS (IRS): self-correction of many operational failures without filing, voluntary correction with a filing and a fee, and audit closing agreements. SECURE 2.0 expanded self-correction meaningfully for eligible inadvertent failures.
  • VFCP (Department of Labor): correction of specified fiduciary breaches, including late deposit of participant contributions, with relief from the § 4975 excise tax for certain transactions when the applicable class exemption's conditions are satisfied.
  • DFVCP: reduced penalties for late Form 5500 filings.

The recurring pattern is that a plan discovers a several-year failure — missed eligibility, wrong compensation definition, missed automatic enrollment, late deposits — and delays correcting because the calculation is painful. Delay makes it worse, and self-correction windows can close.

Bonding and insurance: two different things

The ERISA fidelity bond, § 1112, is required. Every person who handles plan funds must be bonded for at least 10 percent of plan assets handled, with a $500,000 minimum floor for the bond amount cap ($1,000,000 for plans holding employer securities). It protects the plan against fraud and dishonesty. It does not protect fiduciaries at all.

Fiduciary liability insurance is optional and protects the fiduciaries against claims for breach. Most plans have the bond because it is required and lack the insurance because nobody asked. Committee members should confirm which exists, read the exclusions, and check whether the policy covers settlor acts, prohibited transactions, and Department of Labor investigations, and whether defense costs erode the limit.

Indemnification. The employer may indemnify fiduciaries, and usually should — expressly, in writing, and funded. Plan assets may not.

Health and welfare plan fiduciary duties

Retirement plans get the attention, but ERISA's fiduciary rules apply to group health plans too, and the exposure is rising.

The Consolidated Appropriations Act, 2021 removed the gag clauses that had prevented plan sponsors from obtaining claims and network pricing data, added compensation disclosure requirements for brokers and consultants to group health plans, and required an annual gag clause prohibition compliance attestation. Together with transparency rules, these give health plan fiduciaries both the ability and the obligation to evaluate what the plan is paying.

Practical steps: charter a health plan fiduciary committee or expand the existing one; obtain and review broker and consultant compensation disclosures; benchmark administrative fees and pharmacy benefit arrangements; review claims data; document the analysis; and file the annual attestation.

A committee calendar that satisfies the duty

Every quarter

  • Investment performance review against benchmarks and peer groups, with watch-list actions documented.
  • Review of any fund on watch, with a decision and reasoning.
  • Plan operational report: contribution timing, participant complaints, loan and distribution activity.
  • Minutes approved and retained with the underlying materials.

Annually

  • Full fee review in dollars, covering investments, recordkeeping, advisory, and revenue sharing.
  • Share class eligibility review.
  • IPS review and confirmation the committee is following it.
  • Fidelity bond adequacy check against current plan assets; fiduciary insurance renewal review.
  • Committee training refresh; confirm each member has acknowledged their role in writing.
  • Review of the QDIA and any managed account offering.
  • Review of Form 5500 before filing, and of the plan audit if required.
  • Confirmation that participant disclosures were delivered.
  • Health plan: gag clause attestation and broker compensation review.

Every three to five years

  • Recordkeeper RFP or formal benchmarking exercise.
  • Adviser RFP or benchmarking.
  • Plan document restatement on the applicable cycle.
  • Consideration of alternative investment vehicles.

On any change

  • New committee member appointment, acknowledgment, and training.
  • Corporate transaction, plan merger, or provider change.
  • Any known operational failure — correct promptly under EPCRS or VFCP.

A worked example

Return to the engineering firm. Counsel is engaged after a participant's lawyer sends a document request.

What the firm did over four months:

  1. Adopted a committee charter and appointed three members formally by board resolution, with written acknowledgments.
  2. Removed the founder's son and added the controller and an operations director, on the theory that a committee should have people who will read the materials.
  3. Engaged an independent 3(21) adviser with no product affiliation, replacing the commissioned broker.
  4. Adopted an IPS and mapped the existing lineup against it.
  5. Ran a fee benchmarking analysis: recordkeeping was $118 per participant against a peer benchmark of $52 to $70. An RFP produced a $58 per-participant flat fee.
  6. Converted eleven funds to institutional share classes, saving participants roughly 34 basis points on affected assets.
  7. Required revenue sharing to be credited back to participants rather than retained by the recordkeeper.
  8. Identified and corrected late deferral deposits for two payroll periods through VFCP, with lost earnings restored.
  9. Obtained fiduciary liability insurance and increased the fidelity bond to match current assets.
  10. Began quarterly meetings with real minutes.

The result. The plan's total participant cost fell by roughly $190,000 a year. The firm's litigation exposure did not disappear — the six-year period before the changes remains — but the record now shows a committee that identified the problems and fixed them, which is a materially different posture than one that never looked.

Nothing in that list required expertise the firm lacked. It required someone to ask what the plan was paying and write down the answer.

Frequently asked questions

Are committee members personally liable? Yes. ERISA § 409 imposes personal liability to make the plan whole. Employer indemnification and fiduciary insurance are the practical protections; plan assets cannot indemnify.

Does hiring an adviser transfer our liability? Only partially, and only with a 3(38) discretionary appointment as to the manager's investment decisions. The duty to select and monitor the delegate always remains.

We offer index funds. Doesn't that solve the fee question? Not by itself. Hughes held that offering some prudent options does not excuse retaining imprudent ones, and low-cost funds in the wrong share class are still overpriced.

Can we pay the plan's legal fees from plan assets? It depends on the work. Compliance amendments and administration advice are generally plan expenses; plan design consulting and the decision whether to terminate are settlor expenses that the employer must pay.

What is the deadline for depositing employee deferrals? As soon as they can reasonably be segregated from general assets. The seven-business-day safe harbor applies only to plans with fewer than 100 participants. Many large plans deposit within one to three business days, and the Department of Labor treats a plan's own fastest historical practice as evidence of what is reasonable.

Do we need minutes? They are not required by statute. They are the single most valuable document you will have if you are sued.

We just took over a company with a messy plan. Are we exposed? In a stock transaction, yes. Diligence and prompt correction are the answer; discovering it later during a Department of Labor investigation is not.

Does the fidelity bond protect the committee? No. It protects the plan against dishonesty by persons handling funds. Fiduciary liability insurance protects the committee, and it is separate and optional.

Conclusion

ERISA fiduciary law is unusual in that liability rarely follows from a bad decision. It follows from an undocumented decision, or from a decision nobody realized was theirs to make.

The engineering firm's committee had no dishonest members. What it lacked was a charter, an investment policy it followed, minutes that recorded reasoning, a fee analysis in dollars, and anyone who had ever asked whether a cheaper share class of the same fund existed. Every one of those gaps was closeable in an afternoon, and every one of them was, until it was closed, a live claim against three people personally.

The standard is a prudent expert's process. The proof is what is written down at the time. Committees that internalize those two sentences resolve most of their exposure without ever consulting a lawyer about the rest.

Claims, appeals, and the fiduciary's role in benefit denials

Deciding a benefit claim is a fiduciary act, and it is the one place where an individual participant most often confronts the plan directly.

The claims regulation, 29 C.F.R. § 2560.503-1, sets the framework: a decision on a non-disability claim within 90 days (extendable once by 90), a written denial stating the specific reasons, the plan provisions relied on, any additional material needed to perfect the claim, and a description of the appeal procedure and the right to sue. The participant gets at least 60 days to appeal, and the appeal must be decided by someone other than the original decision-maker and without deference to the initial decision. Disability claims carry shorter deadlines and additional requirements, including disclosure of internal rules relied on and advance notice of new evidence considered on appeal.

Exhaustion. Courts generally require a participant to exhaust the plan's internal claims procedure before suing. Where the plan fails to follow the regulation, the claim may be deemed exhausted, and the participant proceeds straight to court — which is a costly result for a plan that missed a deadline.

Standard of review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), holds that a denial is reviewed de novo unless the plan grants the administrator discretionary authority to determine eligibility or construe terms, in which case review is for abuse of discretion. Plan drafters therefore include a Firestone grant — and several states have banned discretionary clauses in insured plans, which is why the same language can produce different review standards depending on whether the benefit is insured or self-funded.

Conflicts. Where the entity that decides claims also pays them, that structural conflict is a factor in the abuse-of-discretion analysis, Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008). Its weight depends on how the plan has walled off the decision from the payer's financial interest.

The administrative record. Under deferential review, the court generally considers only what was before the administrator. That makes the claim file the case. Fiduciaries should ensure denials identify every basis relied on — a reason omitted from the denial letter often cannot be raised later.

Practical guidance for committees: designate who decides claims and appeals, in writing; calendar the regulatory deadlines; use denial letters that track the regulation element by element; keep the file complete; and route any claim involving a committee member or an executive to an independent decision-maker.

Remedies participants can actually obtain

ERISA's remedial structure is narrower than most plaintiffs expect, and knowing its shape helps a fiduciary assess exposure realistically.

  • § 502(a)(1)(B) — recovery of benefits due under the plan, enforcement of rights, and clarification of future rights. The workhorse for a denied claim.
  • § 502(a)(2) — relief under § 409 for breach of fiduciary duty, running to the plan. LaRue v. DeWolff, Boberg & Associates, Inc., 552 U.S. 248 (2008), confirmed that a participant in a defined contribution plan may recover for losses to their own account under this provision.
  • § 502(a)(3) — "appropriate equitable relief," which Amara read to include surcharge, reformation, and estoppel in appropriate circumstances, and which functions as a catchall where no other remedy is available.
  • § 502(c) — statutory penalties up to a daily amount for failing to provide requested plan documents within 30 days. This is small money that plan administrators lose regularly by ignoring a participant's written document request.
  • Attorney's fees, § 502(g)(1), available in the court's discretion to a party achieving some degree of success on the merits.

Extracontractual and punitive damages are generally unavailable, and ERISA broadly preempts state law claims that relate to an employee benefit plan, § 514 — which is why a participant's state-law bad faith claim against a plan usually disappears on removal.

Missing participants and uncashed checks

A quiet but recurring fiduciary problem: former employees the plan cannot locate, and distribution checks that are never cashed.

The Department of Labor treats locating missing participants as a fiduciary obligation and has published best practices: maintaining accurate census data, using free electronic search tools and commercial locator services, contacting designated beneficiaries and emergency contacts, using certified mail, and documenting every attempt. A plan that simply mails to a stale address and stops has not satisfied the duty.

Uncashed checks raise a related issue, because the amounts remain plan assets until properly distributed. Options include re-issuing, rolling over to an IRA under the automatic rollover rules for smaller balances, and, for terminating plans, the PBGC's missing participants program. Escheating to a state unclaimed property fund is a step to take only after analysis, since ERISA preemption complicates the interaction with state law.

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This article is provided for general informational purposes and does not constitute legal advice. ERISA obligations depend on plan terms, plan size, and current regulations, and correction program requirements change. Consult qualified ERISA counsel about your plan and committee.