The ins and outs of your fiduciary exposure and what you can do about it

Employers who maintain qualified benefits plans that are subject to the Employee Retirement Income Security Act (ERISA) assume a fiduciary responsibility for the participants of those plans. More importantly, one of the caveats of ERISA is it allows participants to pursue personal liability for individuals that were involved in the sponsorship or administration of those qualified plans.

So, in theory, the HR administrator, CFO, CEO, owner/shareholder — potentially anyone who played a role in the selection and administration of those qualified plans — can be held personally liable, says Chris Zito, president of Zito Insurance Agency, Inc.

The greater degree they are involved in those decisions, the greater the level of fiduciary exposure.

“Fiduciary claims aren’t as frequent as other types of claims that may be filed against your organization. But unlike the claims that are protected under the corporate shield, fiduciary liability is one area where participants may pierce the corporate shield and go after personal assets,” Zito says.

“Not that protecting the corporation’s assets isn’t important, but if your house could be at risk you should at least be aware of that.”

Smart Business spoke with Zito about misconceptions employers have about fiduciary liability and how you can protect yourself — and your personal assets.

What misconceptions do you see from plan trustees?

Most commonly, plan sponsors confuse their fiduciary exposure with the ERISA bond. They are entirely different — one is a form of employee dishonesty coverage and one is liability coverage. The ERISA bond protects employee investment assets from theft of their retirement funds by trustees. It’s not liability coverage; it’s a requirement the IRS imposes on qualified plans.

In addition, some retirement plans aren’t subject to ERISA. People generally lump retirement plans into one bucket, but they are different, in terms of their legal and compliance requirements.

Do plan sponsors only need to worry about their fiduciary liability for retirement plans?

Traditionally retirement plans are the largest driver of these types of claims because they’re the most visible. But legally, any qualified benefit plan — all of which are subject to the ERISA law — could trigger a fiduciary claim.

How can plan trustees best mitigate their fiduciary liability exposure?

Quantity and diversity of investment selection, along with plan education, are key to minimizing the exposure of retirement plan-related liability.

Defined benefit plans used to impose a significant fiduciary responsibility on employers because they had the actuarial responsibility of making sure the plan was funded properly. Today’s 401(k)s and profit-sharing plans have migrated to a self-directed model, where employees choose from different mutual funds, varying from low risk to high risk. The more control and direction the employees have, the lower the fiduciary exposure, but it doesn’t eliminate it entirely.

Plan trustees want to make sure they’re providing ample education about how any qualified benefit plan works — retirement or otherwise. Education is a requirement under ERISA.

You also can buy trustee and fiduciary liability (TFL) coverage. A key consideration in buying a TFL policy is coverage for defense costs, regardless of whether negligence exists.

Fiduciary liability is fairly generic in terms of what the coverage does, but the breadth of the policy varies by company. You can get pricing from multiple companies, and the coverage limits and deductibles may be identical but that doesn’t mean you’re getting the same policy. It is important to review the policy language to determine how or if coverage applies to Affordable Care Act compliance.

The right agent will be familiar with the policy language in terms of what types of fiduciary claims and allegations it will cover and defend, like regulatory expenses.

Insights Business Insurance is brought to you by Zito Insurance Agency, Inc.