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When is using e-mail "integral" to a worker's job duties?


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A fiduciary may use e-mail as the initial means of delivering a communication to a participant who can “effectively access documents furnished in electronic form at any location where the participant is reasonably expected to perform his or her duties as an employee” if “access to the employer’s … electronic information system is an integral part of those duties[.]” 29 C.F.R. § 2520.104b-1©.

But what does it mean to say that using e-mail or some other software is “integral” to an employee’s work? If a person’s work involves physical activities but his or her employer requires him or her to check e-mail every two hours to get instructions, is that enough? Is the answer the same or different if the employee is required to check e-mail only once for a whole eight-hours shift?

If a worker is required to read e-mail but is not expected to write any response, is electronic communication "integral" to his or her work?

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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I would think that if the employer requires the employee to check email on a daily basis, then access to email would be treated as "integral" enough to permit the use of email for required notices. Weekly? Not as clear. Merely assigning an email address to everyone and letting it be known that all mandatory notices will only be provided via email, a bit more nebulous, but may still be acceptable. I don't think that job must require the use of email on a two-way basis (send and receive) to permit the issuance of mandatory notices via email. That would be excessively limiting. Providing each employee access to the corporate email system (including access to a suitable computer) and, perhaps, providing employees the opportunity to specify another email address for mandated notices ought to be unquestionably enough to permit issuing notices to employees only by email.

Always check with your actuary first!

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This is a great question. I was one of the drafters of a comment letter on this topic a few years ago. The integral requirement was one of our arguments in favor of a an opt-out default rather than an opt-in default. There are very few jobs left that does not include some level of electronic communication, but there is no clear definition of when it is integral.

In my opinion, two way communication is not required for it to be integral. If you are required to read email on a consistent basis, that is enough for it to be integral.

 

 

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leveena, My 2 cents, and RatherBeGolfing, thank you for the helpful thoughts.

So let's try some examples: Imagine a hotel operator requires a cleaner to begin each daily shift by checking electronic communications. Or imagine a delivery-service operator requires a driver to begin each half-day shift by checking electronic communications.

If this is enough part of the job's requirements that it's "integral", an employer/administrator may, without a participant's consent, deliver notices by electronic communication (preserving a participant's right to request paper documents).

If this is legally sufficient, why are so many employer/administrators still sending paper notices?

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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leveena, My 2 cents, and RatherBeGolfing, thank you for the helpful thoughts.

So let's try some examples: Imagine a hotel operator requires a cleaner to begin each daily shift by checking electronic communications. Or imagine a delivery-service operator requires a driver to begin each half-day shift by checking electronic communications.

If this is enough part of the job's requirements that it's "integral", an employer/administrator may, without a participant's consent, deliver notices by electronic communication (preserving a participant's right to request paper documents).

If this is legally sufficient, why are so many employer/administrators still sending paper notices?

Guessing force of habit, uncertainty concerning adequacy, system changes would be needed or some combination. If they send paper notices, no chance of that being treated as insufficient. Perhaps, if the employees are still paid by paper check (it's possible), inserting the notice in the envelope with the check is as easy as anything else.

Always check with your actuary first!

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If this is legally sufficient, why are so many employer/administrators still sending paper notices?

Because you left off this part of the rules:

(A) Except as provided in paragraph ©(2)(ii) (B) of this section, has affirmatively consented, in electronic or non-electronic form, to receiving documents through electronic media and has not withdrawn such consent;

I have never seen any place that gets 100% of their people to consent. So you are either forced to send paper to everyone or make two groups. Now I have a client that has over 17k employees. For them the savings in postage is enough to go through the cost of making two groups of data and delivering one set electronically and one set by paper.

I am not sure where that line is but most of my clients that has 2k or less in total employees seem to think just sending out paper to everyone is just as easy and cost effective.

As for your various groups. Most of my clients that have employees who aren't "desk jobs" (think factory workers or your cleaning lady) feel uncomfortable with the idea those people have true access to e-mail and don't do it.

For my clients that are like my engineering firms (where everyone has a desk job and pretty good with computers) the reason goes back to my first comment. Enough of them will not consent so they stick to paper.

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... and paragraph ©(1)(i)(A), which seems to indicate a PA responsibility to monitor/measure actual receipt of the e-correspondence.

I'm a retirement actuary. Nothing about my comments is intended or should be construed as investment, tax, legal or accounting advice. Occasionally, but not all the time, it might be reasonable to interpret my comments as actuarial or consulting advice.

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ESOP Guy, I read the rule as allowing an electronic notice, subject to the other conditions, if the integral-part condition is met or the affirmative consent was made (and has not been withdrawn). I read the rule as an "or", not as requiring both of those conditions.

David Rigby, an employer/administrator should use technological means to show that the notices were delivered. In my experience, if the employer really requires its employee to use e-mail as a part of his or her job, bad addresses can be readily detected and corrected. (If an error in addressing a current employee goes unobserved, how "integral" to the work is the regular use of the e-mail system?) And many employers use, for other business reasons, a system of surveillance on employee's use of the employer's e-mail system.

My 2 cents, I too find that many employers and service providers are struggling with the trade-off of a today expense to build the programming and systems to get a tomorrow expense savings. Also, a service provider might have little incentive to build something to manage an expense that's external to the service provider.

Thank you, everyone, for helping me think.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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If this is legally sufficient, why are so many employer/administrators still sending paper notices?

What My2Cents, ESOP Guy, and David said.

It is a combination of

1) No actual definition for "integral" (our opinions are just...opinions)

2) old habits die hard

3) duty to monitor (although you have the same duty with paper if you use regular mail)

I know ASPPA/ARA goverment affairs committee has pushed for electronic as a default (opt out rather than opt in) for quite some time, especially since there is no uniform standard within the DOL, or between the DOL and IRS. There has been some resistance at the DOL but who knows what a new administration will bring...

 

 

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ESOP Guy, I read the rule as allowing an electronic notice, subject to the other conditions, if the integral-part condition is met or the affirmative consent was made (and has not been withdrawn). I read the rule as an "or", not as requiring both of those conditions.

Or is correct. You can do it electronically if they meet the integral condition or if they affirmatively consent (opt in). Otherwise you have to do paper. I read ESOP Guys comment as two groups

1) electronic (both integral and opt ins)

2) paper (those who do not meet the integral test and did not opt in)

 

 

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I will admit I had the rule wrong. At least where I work we don't send electronic if the person hasn't consented. Management around here can be a bit conservative when it comes to these kinds of issues and I mistook concern on their part for required in rules. .

Edit:

Or maybe management around here couldn't figure out what level of access was needed per this discussion and went for the more objective rule of consent or no consent as that is easily documented.

Maybe I will ask some time.

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Not to be too practical, but have there been any real problems resulting from failure to deliver "stuff," electronically or otherwise?

How is mailing something, without a return receipt (and God forbid anyone is actually doing return receipts), or hand delivering without a signed receipt, and better than an email blast to all employees (without return receipt).

Admittedly I don't deal with any plan that has 1000 participants, let alone 20,000, but I only see this becoming a real issue if there is some kind of pattern of secrecy and/or deceit. As nasty as the DOL can be, I don't see them dropping the hammer just because 5 participants' SARs got lost on a server.

Ed Snyder

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Electronic delivery will be less of an issue as more people in my generation (ancients and pre-historics) retire.

A majority in these groups are computer literate enough to check e-mails, etc., but a meaningful minority cannot or will not make using the computer a routine function in their work day.

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