Required Notices for participants_ Adoption Agreement?

[RRivera]

Hello, 

A participant is demanding a copy of the Adoption Agreement. She was provided will all the other required notices. Here is her email response. I have researched and all parties I have spoken to state that the employer has discretionary choice to provide the Adoption Agreement. Has anyone encountered this and what was the response? 

[RatherBeGolfing]

1 hour ago, RRivera said:

Hello, 

A participant is demanding a copy of the Adoption Agreement. She was provided will all the other required notices. Here is her email response. I have researched and all parties I have spoken to state that the employer has discretionary choice to provide the Adoption Agreement. Has anyone encountered this and what was the response? 

I'm not sure what would make the AA an "optional" document to provide...

Does it somehow not relate to the establishment or operation of the plan?

ERISA §104(b)(4) 

Quote

The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence

 

[Mike Preston]

I think it may be possible that the OP is confusing the fact that the Plan Administrator can control some aspects of HOW the plan document is provided to the participant with the fact that the participant has the right to request the plan documents (not only the Adoption Agreement, but the basic plan document, too, as well as all of the items enumerated in the above post).

For example, I frequently see SPD's that state a participant may view, without charge, the plan documents at the office of the Plan Administrator, during business hours.  I've also known some plan administrators to require a payment of up to 25 cents/page, in advance, before they will provide a hard copy through the mail. Some will provide electronic access without charge, some won't allow electronic access.  Most bend over backwards to make the documents available at a reasonable cost so that no judge has the ability to wrap their knuckles over the issue.

 

[Bird]

Quote

I have researched and all parties I have spoken to state that the employer has discretionary choice to provide the Adoption Agreement.

This is where we usually tell people to ask those sources to come up with a cite for their position.  Of course they can't because they are wrong.  As Mike notes, it might be confusion about how to provide the notice.  But the Adoption Agreement should be a fairly short document and I recommend it be provided without further delay.

[K2retire]

Why does the employer want to avoid providing it?

[CuseFan]

Anyone who says the employer has discretion in providing the plan document in some form upon request is setting the employer up for a DOL audit and the $110/day penalty (or whatever the penalty is now) for refusing to provide ERISA-protected right to requested documents. This is CUT and DRIED.

[My 2 cents]

I am not a lawyer, but I am absolutely positive that with respect to any prototype plan, the "plan document" inevitably consists of both the basic plan document and the adoption agreement.  While there may be other documents that are also required to be made available, the participant (and, if applicable, the participant's legal advisor) cannot determine what the participant's rights are without both.  Of course, I say this based on the idea that every single basic plan document includes provisions that are not completely defined and that every single adoption agreement includes elections to be made by the adopting sponsor to resolve all of those provisions.  That is, I am convinced that there is no such thing as a basic document with no permitted variations and no such thing as an adoption agreement that merely says "yes, I am adopting that basic plan document".  If the basic document allows for a variety of vesting provisions, for example, and the adoption agreement shows what the specific vesting schedule is, then how could the participant determine whether they are or are not vested without both?

[Bird]

17 hours ago, My 2 cents said:

I am not a lawyer, but I am absolutely positive that with respect to any prototype plan, the "plan document" inevitably consists of both the basic plan document and the adoption agreement.

Good point.  If someone asks for the "Adoption Agreement" I will generally take that literally and give that to them...quickly, so they don't get suspicious and then start asking for more, although providing a pdf of the BPD is certainly no big deal.  If they ask for the "plan document" they'd get both (perhaps with a certain smug "knock yourself out" attitude depending on their own attitude).

[kmhaab]

Generally an Adoption Agreement is incorporated into and part of a "Plan Document" and it should be provided to a participant upon request.

[Albert F]

RatherBeGolfing is correct that a plan adoption agreement is an “instrument under which the plan is established or operated,” which the plan administrator is required to provide to a plan participant that makes a written request for plan governing documents.  ERISA §104(b)(4).         

Participants requests the plan adoption agreement for two reasons. First, to determine which plan options, such as plan contribution rates, were selected by the plan sponsor. Second, to determine, what was the latest adoption agreement duly executed by the plan sponsor. Thus, participants often also ask for the resolutions authorizing the plan sponsor to execute the adoption agreement, so that the agreement determines the plan terms. 

[Mike Preston]

43 minutes ago, Albert Feuer said:

Thus, participants often also ask for the resolutions authorizing the plan sponsor to execute the adoption agreement, so that the agreement determines the plan terms. 

Huh?