Spanish SPD

[Guest kurt johansen]

I have a client with 30% spanish speaking workers. According to the SPD regulations, that means the employer needs to create a Spanish SPD. Does anyone know of a service that specializes in these. Due to the technical nature of an SPD, I would be a little concerned about using someone who does not have any employee benefits knowledge. Obviously, I won't be able to review the document.

Kurt

[LCARUSI]

Try any of the major benefit consulting firms. That would be preferable to using a firm that translates but has no benefits background.

[Guest JF]

What rule are you referring to that requires the Spanish SPD ? I have read in more than one reference book that if you have over the limit of non-english speaking participants, you need to supply a notice that would be attached to the SPD. The notice must be in their native language and must basically say that if they need help in understanding the SPD, they can get help in their own language and who they can go to for such help. There are some specifics of the notice and there are some quota's on the numbers (less than 30%), but I did not see a requirement to supply an SPD in the non-english language. This is not the first time I heard someone mention the Spanish SPD, so can you tell me where you are seeing this rule you mentioned ?

[Guest PeterGulia]

The DoL regulation requires only the notice, not a complete SPD. The notice tells the participant to ask the plan administrator for assistance.

What happens when the plan administrator cannot provide assistance because it has no employee who both speaks or writes the other language and has knowledge of the plan?

In addition to the "official" text of the DoL notice, should the SPD's foreign language notice also disclose that the plan administrator has no-one available?

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[LCARUSI]

Even if you don't HAVE to provide the SPD in Spanish, don't you think it's the right thing to do when you have 30%+ spanish employees?

[Guest JF]

Boy that's opening a large can of worms. Don't you think giving EVERY employee 15% of pay rather than just the owners in a Cross Tested Plan is the "right" thing to do? I think we get paid to follow the rules. If the rules require a notice, we give a notice. However, I think that there does need to be someone that can help with translations who the plan administrator can use if the request is made. Even if that person is not a benefits person butcan translate for the plan administrator as they explain the benefits. Of course, workign with a product vendor that has Spanish speaking enrollers always solves the problem. (Didn't mean to be sarcastic here, just a point)

[Kirk Maldonado]

There are several companies in California that specialize in translating benefits communications materials into Spanish. Unfortunately, I don't know the names of any of them, but I have received several flyers from those companies over the years.

[LCARUSI]

JF -

I don't think you can compare a 15% contribution to a one-time translation of an SPD.

And we shouldn't just follow rules. We should do the right thing within the framework of appropriate rules. Rules are just a baseline.

[Guest kurt johansen]

thanks for all the responses.

JF, I made a mistake with respect to the Spanish SPD requirement. Mr. Gulia is correct about only having to provide a notice in Spanish. Apparently there is some widespread misunderstanding here by ERISA practicioners as I was asked by a partner with 20 + years of ERISA experience to determine if we needed to provide a Spanish SPD.

[Guest Chuck Miller]

FYI...

The reg that governs communications for non-English speakers/readers is

CFR 2520.102-2(a)(B)...

[Guest Ron Wohl]

The requirement in ERISA is for a notice on the first page of the SPD indicating that the individual can contact the company for assistance in the language of the employees who are not literate in English for an explanation of the information in the SPD,in there language. Please understand, however, in the case of Spanish, there are at least 5 dialects. These dialects define many words differently from one another and have idioms that make the translation process even more difficult and confusing.

The appropriate "right thing to do" is to identify employees who are both literate in the particular dialects prevalent among your employees and in English; train them, if they agree, and designate them as your organization's interpreters. You may even want to pay them a small stipend for this extra responsibility. If you are using an intranet, you may have a Spanish language translation service translate the document into neutral Spanish ($0.08 a word)and then have these dialect-capable interpreters read the translation and adapt the neutral text to a dialect-correct version.

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[Guest RS Vatalaro]

Kurt - I have used a Co. in CA to do a Spanish SPD for me. If you would like his name and address please e-mail me at rvatalaro@earthlink.net (not displaying here to protect his privacy). He was really nice and I received prompt service.

[Chaz]

As mentioned above, ERISA Section 102 requires a notice of assistance to be included in an SPD if the plan reaches the enumerated threshold of foreign speaking participants. PPACA has a similar requirement to provide notices "in a culturally and linguistically appropriate manner" if the plan has the same threshold of non-English speaking participants.

My question is, in practice, how can the plan determine this, especially if the number of participants are close to the threshold limit?

Does anyone have experience in doing this?

[Peter Gulia]

At least under the 1974 law, the EBSA staff people - even in unofficial Q&A sessions - decline to say much about how an employer would find whether an employee is literate in another language but not in English. Although an employer might (or might not) be aware that its employee speaks another language, it much less often knows that an employee reads another language and does not read English. At least unofficially a staff person has suggested that, if plan assets would bear either expense, an employer might consider whether volunteering some foreign language assistance is less expensive than finding out who is literate in a foreign language but not in English.

See Q&A 20 http://www.americanbar.org/content/dam/aba...uthcheckdam.pdf

[Peter Gulia]

The linked-to court decision explains a trial judge's finding that a complaint did not sufficiently allege facts that, if proven, could show that an English SPD was not understandable to "average" participants.

Among other reasoning, the analysis says it's not about what language a participant speaks; rather, it's about whether participants READ a language other than English AND do not read English.

http://www.mdd.uscourts.gov/Opinions/Opinions/13-cv-3684%20Melendez.pdf

That said, there might remain a duty to provide some foreign-language assistance.

[Calavera]

And here is the "plain English" summary of the above mentioned court case

http://www.plansponsor.com/English-Language_SPDs_May_Not_Violate_ERISA.aspx

[pensiongeek]

https://www.law.cornell.edu/cfr/text/29/2520.102-2  

[Peter Gulia]

 

The 2014 hyperlinks no longer point to the sources described.  The court decision is available in Bloomberg BNA's Employee Benefits Cases and in Bloomberg Law.

Melendez v. Hatfield’s Equip. & Dedication Servs., Inc., No. 1:13-cv-03684-ELH, 59 Empl Benefits Cas. (BNA) 1637, 1641, 2014 BL 223275 (D. Md. Aug. 12, 2014) (The complaint did not sufficiently allege facts that, if proven, could show that an English SPD was not understandable to “average” participants.  29 C.F.R. § 2520.102-2 refers not to what language a participant speaks; but rather to whether participants read a language other than English and do not read English.  “Although [the plaintiffs] allege that they are ‘40 Spanish-speaking employees’ whose ‘first language’ is Spanish, the Amended Complaint contains no allegation regarding the number of total plan participants, the percentage of total plan participants who are only literate in Spanish, or even that they are only literate in Spanish.  Accordingly, the facts alleged in the Complaint, taken as true, do not state a claim for relief.”) (emphasis in original).

 

What written and oral communications beyond English a plan's fiduciary ought to provide to meet ERISA fiduciary duties and other duties or obligations is a fact-sensitive question.