What happens when DoL finds no bond?

[Jed Macy]

Does anyone have any actual experience with the DoL examining a plan that has not bought a fiduciary bond? What can the DoL do? What has the DoL done?

[Belgarath]

I'm not sure. I'm not aware of a specific penalty under ERISA. However, ERISA 412(b) states that it is "unlawful" for a fiduciary to handle plan funds without being bonded. I believe it would also be a fiduciary breach under ERISA 409, which requires the fiduciary to be personally liable for any plan losses due to the breach. However, I don't see a specific loss here. The fiduciary could be removed (and for a small employer, being removes as fiduciary on your own plan might be more onerous than for a larger company)

Also ERISA 502(l) lets the DOL assess a 20% civil penalty. But I believe that is 20% of the recovery amount. What this would be, I don't know, since I'm not sure that there would be any recovery.

I've never actually seen a situation where any enforcement happened under this requirement. So I'm only speculating...

[bzorc]

We had an instance where the DOL "investigated" a plan because the fidelity bond amount listed on the Form 5500 was not 10% of the plan assets. By the time the investigation occured, the client had upped the bond to an appropriate amount. The investigation was over quickly, to say the least...

We recommend to all our clients to obtain a bond, in order to avoid the messy situation described above. And, in answer, if the DOL investigates, get that bond ASAP!!