Emailing new SPD

[austin3515]

I have read that the DOL requires steps be taken to determine actual receipt of the SPD, such as a read receipt confirmation. Are you supposed to follow up with anyone for whom you did not receive a return receipt? I don't know of any reporting in Outlook that will give you a list of who didn't generate a receipt, which means you've got to have a paper list and check them off as they come in?

Is that what people are doing?

[12AX7]

Mr. Powers. You're probably referring to this section from DOL guidance:

Delivery. The plan administrator takes appropriate and necessary measures reasonably calculated to ensure that the electronic delivery system results in actual receipt of transmitted information (e.g., using return receipt or notice of undelivered electronic mail features, conducting periodic reviews or surveys to confirm receipt of transmitted information, etc.).

It seems the operative words are "reasonably calculated" which means this is not exact science to prove delivery which makes the process more burdomsome while trying to facilitate distribution by electronic means.

Are you emailing the SPDs to the participants or is the client? I'm more inclined to request that the client print copies and distribute to each participant and have them sign for receipt of the document. This process may be more problematic with a large scale workforce, but to me ensures a better percentage of proven delivery.

[austin3515]

Client is emailing. I'm actually leaning towards the survey option - email the SPD to everyone, and then call 15 or 20 two days later and say "hey, did you get my email with the new SPD?" This is a larger organization (couple hundred eligibles).

[12AX7]

Not sure how this could get enforced by DOL and what threshold of contact is needed to be "reasonably calculated". However, when I worked for a large company, I recall receiving notification through email how to obtain a copy of the SPD. Because this was through an intranet, perhaps the monitoring of delivery issues went away. You're method seems reasonable in my opinion if working with email addresses outside of the company email domain.

[austin3515]

Are you saying that if all the email addresses are in domain (which in my case they are), then you know for sure they were delivered? Does that confirm "actual receipt?"

[12AX7]

If in the company's email domain you can prove delivery to the account through the server. Now if the participant deletes the email or doesn't read it, that's another mattter. I would still set for return receipt, but I think the job of proving delivery got a little easier.

[austin3515]

That is interesting - does anyone else draw the same conclusion? My life gets a lot easier if that's the case. Anything published on this? Articles from Reish, McCay Hochman or Relius?

[Bill Presson]

You could also use a product like ShareFile that is a secure delivery method. We use it for delivering large files or files with confidential information, but it has a method of showing everyone that actually downloads the file.

[austin3515]

That is an interesting idea. Solves the problem of not being able to see who downloaded. So are you not in agreement that sending an email only within the sponsors domain is enough to support the "actual receipt" standard?

[david rigby]

Consider also that use of an intranet may require only one copy, that can be read (and perhaps printed) by any user on the intranet. For those without access to the intranet, a paper copy might be required.

[Bill Presson]

That is an interesting idea. Solves the problem of not being able to see who downloaded. So are you not in agreement that sending an email only within the sponsors domain is enough to support the "actual receipt" standard?

No, I think the read receipt is perfectly fine and I'm not even worried enough to use the read receipt for a firm that provides everyone with a computer.

[austin3515]

Well the latter covers the vast majority of people emailing SPD's though, doesn't it? So if everyone in the office has access to a work-based computer, then emailing it to that work based computer over your own internal "known to be reliable for delivering email messages" network, that meets the criteria the DOL has set forth regarding ensuring actual receipt?

I mean, it seems logical - I had just never entertained the possibility that anything other than using a firm's internal network would have been used in the first place.

[austin3515]

I guess what it comes down to is, what is the definition of "actual receipt." It certainly would seem that having the email show up in their in box should meet this criteria. I suppose another interprepration is that they actually OPENED the email. How is it that a basic interpretation of what this means on a practical level is not provided anywhere? We're left to guess what it is the DOL actually means here. Does anyone have anything except speculation to offer here??

[BG5150]

I suggest making each employee come to a location and get a physical copy of the SPD. I would also have postcards printed up and affixed with some sort of hologram (so you know the cards are authentic) with the employees name, SSN and other employer related data (division, pay grade, location, EE-id, whatever).

When the SPD is handed off, the employee must show government issued photo identification (driver's license, passport, etc.) and a secondary piece of id. Also, as proof of receipt the employee must sign the postcard and give two thumb prints--one right, one left. Get the cards notarized, too.

Having the whole process under video surveillance is an additional safeguard. Make several copies, and store them on a variety of media (flash drives, dvd's, digital video tape, on the company's HR servers and any backup servers, copies to attorneys, too.)

[austin3515]

Hilarious, I'll grant you that, but I have a legitimate reasonable question from a conscientious client who just wants to know what they need to do to comply with the electronic deliveries...

[BG5150]

Hilarious, I'll grant you that, but I have a legitimate reasonable question from a conscientious client who just wants to know what they need to do to comply with the electronic deliveries...

I know. I was just having a bit of fun...

[four01kman]

Why is something sticking in my head regarding electronic communications? Don't employees have to affirmatively elect to receive electronic communications to a particular email address, which does not have to be the company's email address?

[12AX7]

That's generally correct for 404(a)(5) disclosure, but the DOL guidance predates this.

[david rigby]

It may help to read the actual DOL regulation. 2520.104b-1, section ©.

That section was originally effective in 1997, but this link takes you to the 2002 revision. (As usual, DOL regs are not "reader-friendly"; look for "(c) Disclosure through electronic media".)

http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=19158&AgencyId=8&DocumentType=2

[austin3515]

Sometimes it pays to read the regs directly (not usually, just sometimes!)

2520.104b-1 Disclosure.

© Disclosure through electronic media.

(i)

(A) Results in actual receipt of transmitted information (e.g., using return-receipt or notice of undelivered electronic mail features, conducting periodic reviews or surveys to confirm receipt of the transmitted information); and

So emailing is fine, as long as you get confirmation of undeliverables. So assuming emailing over Company networks, it is not necessary to get return receipts and cross-reference listings to ensure everyone got it. You only need to track down the undeliverables.