Automatic rollovers: safe or non-safe?

[E as in ERISA]

There has sometimes been speculation that no plan meets all the requirements of ERISA 404© and a fiduciary may be better protected from liability by performing due diligence and helping improve participants understanding of investments.

Does anyone think that the same is true of the automatic rollover rules? In other words, is it likely that there will be some question of whether a plan has complied with the safe harbor based on lack of definition in the rules (or will the new requirement for an agreement eliminate that risk)? Would it be just as good to comply with the one-year non-safe harbor rule instead.

[sloble@crowleyfleck.com]

When I read the new autorollover regs, I was actually pleased to see the DOL trying to emphasize that the employer's responsibility stops once the funds transfer to the right institution and that agreement is in place. I think so long as the agreement parrots the new regs subsection 3 I believe (including a description of the initial investment) and the transfer is made to the right institution I will feel comfortable advising clients that they do not have to worry about the funds anymore. I do not feel so comfortable with the 404c "safe harbor"-- I think the requirements there are so much more onerous and sometimes practically impossible to meet. But, you have my curiosity now and I wonder if I should not be so trusting of the new safe harbor.

That being said, I am still planning to advise clients as to the benefits of scrapping the autorollover and eliminating cashouts--as you have concurred in prior posts.

Finally, what is the one-year nonsafe harbor rule? I read the regs quickly and may have missed something...