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for Nova 401(k) Associates (Remote)View the full text of this job opportunity

The focus of this excerpt relates only to ERISA qualified plans and was designed to address a potential Alternate Payee seeking to enforce a QDRO. But the definition of "beneficiary" is the same in the scenario you present, that is a employer sponsor of a health and welfare benefit plan. If you have the right to sue then you have the right to subpoena records. That does not, however, mean that you have to right to ask for records before suit has been filed and before a court has determined that you are in fact a "beneficiary" with standing to obtain records. As a practical matter the situation is likely the same with respect to a non-ERISA Plan. There are many plans that will not provide records without a subpoena signed by a judge. A subpoena signed by the Clerk of the Court will not do. The US Military will not provide such records unless the subpoena is signed by a Federal judge. See https://www.dfas.mil/foia/Subpoenas-Court-Orders/Subpoena-and-Court-Order-State/ and click on "Other Requestors". But in both cases you cannot get a subpoena without having a case pending before that court. In the case of the Military the workarounds are : (i) voluntary compliance by the Member; (ii) having the court hold the Member in contempt and imposing sanctions until the Member provides the requested information or authorizes the release of the information and documents to opposing counsel. A third option is to ask the court to assume that. since the Member will not cooperate, 100% of the Member's benefits are marital property and that the Former Spouse is entitled to 100% of such benefits --- so now the burden shifts to the Member to prove otherwise. A plaintiff has standing to bring a claim under ERISA if he/she is a plan participant, beneficiary, or fiduciary. Caples v. U.S. Foodservice, Inc., 444 F. App'x 49, 52 (5th Cir. 2011) (citing 29 U.S.C. § 1132(a)); Cobb, 461 F.3d at 634; Coleman v. Champion Int'l Corp., 992 F.2d 530, 533 (5th Cir. 1993). A "participant" under ERISA is an "employee or former employee" of an employer offering an employee benefit plan. 29 U.S.C. § 1002(7). A "fiduciary" is someone who (1) exercises "discretionary authority . . . respecting management of such plan or . . . disposition of its assets," (2) "renders investment advice for . . . compensation . . . with respect to any moneys or other property of such plan," or (3) "has any discretionary authority or . . . responsibility in the administration of such plan," Id. § 1002(21)(A). A "beneficiary" is defined as "a person designated by a participant, or by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder." Id. § 1002(8). In order to qualify as a beneficiary, an individual must have "a reasonable or colorable claim to benefits." Crawford v. Roane, 53 F.3d 750, 754 (6th Cir. 1995); see also Cobb, 461 F.3d at 635-36 (holding that to have standing as a beneficiary under ERISA, a plaintiff must show both that he or she was designated as such by the participant or terms of the plan, and that he or she has a colorable entitlement to benefits under the plan). In Parsons v. Board of Trustees of the Boilermaker-Blacksmith National Pension Trust, Civil Action No. 2:20-cv-00132, USDC (S.D. WV 2020), 487 F.Supp.3d 489 (2020), that you can find at - https://scholar.google.com/scholar_case?case=12166270204191846086&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:14880692104701005079:AAGBfm2qi1_JaXLJvydb4f3quYTnTlLkbA, the Court set forth a good summary of the rights of potential Alternate Payees to sue a pension plan for benefits claimed to be payable by reason of a QDRO. At issue in this case was whether or not the language of the QDRO was broad enough to include survivor annuity benefits. Said the Court - “ERISA was enacted to protect employees and their beneficiaries by ensuring the proper administration of employee benefit plans. Boggs v. Boggs, 520 U.S. 833, 839 (1997). The Retirement Equity Act of 1984 (REA) amended ERISA with respect to surviving spouses in two important ways. REA requires pension plans to provide automatic benefits to surviving spouses. Id. at 843; 29 U.S.C. § 1055(a). Additionally, while ERISA generally prohibits assignment or alienation of benefits under a pension plan, REA provides for a Qualified Domestic Relation Order (QDRO) exception wherein a former spouse or children of a previous marriage may be designated as an alternate payee and thereby "receive all or a portion of the benefits payable with respect to a participant under the plan." 29 U.S.C. § 1056(d)(3)(B)(i)(l). “A domestic relations order is any judgment, decree, or property settlement that "relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant" and "is made pursuant to a State domestic relations law." Id. at § 1056(d)(3)(B)(ii). However, in order for a domestic relations order to qualify as a QDRO, it must meet the following requirements: (1) the order must specify the name and mailing address of the alternate payee and the affected plan participant, (2) the amount or percentage of the participant's benefits to be paid or the means by which that amount will be determined, (3) the number of payments or time period to which the order applies, and (4) each plan to which the order applies. Id. at § 1056(d)(3)(C). Moreover, a QDRO cannot (1) require the plan to provide any type of benefit not otherwise provided, (2) require the plan to provide increased benefits, or (3) require benefits to be paid to an alternate payee which must be paid to another alternate payee under the QDRO. Id. at § 1056(d)(3)(D). “A plan administrator generally has discretion to determine whether a domestic relations order constitutes a QDRO, but such determinations are reviewable by courts. Dorn v. Int'l Bhd. of Elec. Workers, 211 F.3d 938, 946 (5th Cir. 2000). In determining whether a domestic relations order is a QDRO, courts have required substantial compliance with the drafting requirements. Hamilton v. Washington State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091, 1097 (9th Cir. 2006). The "pivotal question is whether the dissolution order `clearly contains the information specified in the statute that a plan administrator would need to make an informed decision.'" Id. (quoting Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1154 (9th Cir. 2000)). “If a domestic relations order qualifies as a QDRO, then "any spouse, former spouse, child, or other dependent of a participant" that is designated as an alternate payee shall be considered a "beneficiary under the plan." Id. at §§ 1056(d)(3)(J)-(K). Thereby, a former spouse can obtain a secured interest in benefits merely by obtaining a QDRO. Id. at 1056(d)(3)(A); Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 864 (4th Cir. 1998); Hopkins v. AT&T Global Info. Solutions Co., 105 F.3d 153, 157 (4th Cir. 1997). “As noted above, ERISA requires pension plans to provide automatic survivor benefits to retiring participants. Dorn, 211 F.3d at 943. A Qualified Q Annuity (QJ&SA) is the principal mechanism for providing such survivor benefits. Id. "[A] QJ&SA comprises two separate and distinct benefits: (1) An annuity for the life of the participant, and (2) a succeeding annuity for the life of the surviving spouse (if there is one) of not less than 50% of the participant annuity." Id. Generally, in order for one to qualify as a surviving spouse in the context of a QJ&SA they must be married to the participant "(1) during the applicable election period, (2) on the annuity starting date, or (3) at [the participant's] death." Id. at 947 (internal quotation marks omitted). “Former spouses, however, can also receive surviving spouse benefits under certain circumstances. "To the extent provided in any qualified domestic relations order ... the former spouse of a participant shall be treated as a surviving spouse of such participant." 29 U.S.C. § 1056(d)(3)(F)(i) (emphasis added). Federal courts have held that, in order for a former spouse to be entitled to surviving spouse rights, "any assignment of surviving spouse rights in a QDRO must be explicit, rather than implicit." Hamilton, 433 F.3d at 1099; Hopkins, 105 F.3d at 155; Dorn, 211 F.3d at 947. Moreover, where a QDRO is silent as to surviving spouse rights, a designation of alternate payee or beneficiary does not elevate one to the status of a surviving spouse entitled to a survivor annuity under a QJ&SA. Dorn, 211 F.3d at 947. “The detailed requirements for drafting a QDRO have been characterized as a "drafting morass for the lawyer." Hamilton, 433 F.3d at 1096. The Court recognizes "the concern expressed by courts and commentators that the failure of domestic relations lawyers to `navigate the treacherous shoals' of ERISA may harm potential beneficiaries." Id. (quoting Metro. Life Ins. Co. v. Wheaton, 42 F.3d 1080 (7th Cir. 1994)). Nevertheless, "Congress required that QDROs be specific and clear because it was concerned with reducing the expense to plan providers and protecting them from suits for making improper payments." Id. at 1096-97 (quoting In re Gendreau, 122 F.3d 815, 817-18 (9th Cir. 1997)) (internal quotation marks omitted). "As an initial matter, the Plaintiff argues that the Court should not consider the QDRO or the Plan Document, because review of such documents is premature at the motion to dismiss stage and would instead convert this motion into one for summary judgment. This argument is without merit. For purposes of a motion to dismiss, "a court may consider official public records, documents central to the plaintiff's claim, and documents sufficiently referred to in the complaint so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 Fed. Appx. 395, 396 (4th Cir. 2006). A court may also consider pension plan documents for a motion to dismiss when a plaintiff relies on such documents in the complaint. Stewart v. Pension Trust of Bethlehem Steel Corp., 12 Fed. Appx. 174, 176 (4th Cir. 2001). Both the QDRO and the Plan Document fall under this umbrella and may be considered in light of the motion to dismiss.” ERISA § 404(a)(1) sets forth the primary duties of an ERISA fiduciary, providing that a fiduciary must: (1) act solely in the interest of plan participants and beneficiaries for the exclusive purpose of providing benefits to participants and their beneficiaries; (2) act with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims; (3) diversify the investments of a plan so as to minimize the risk of large losses; and (4) act in accordance with the documents and instruments governing the plan insofar as they are consistent with the provisions of Titles I and IV of ERISA. 29 U.S.C. § 1104. A fiduciary may be personally liable for, and removed as a fiduciary as a result of, any breaches of the responsibilities, obligations, and duties imposed by the statute while acting as a fiduciary under ERISA. ERISA § 409. 29 U.S.C. § 1109. Generally, to state a claim for breach of fiduciary duty under ERISA, a plaintiff must allege that: (1) the defendant was a fiduciary of an ERISA plan who, (2) acting within his capacity as a fiduciary, (3) engaged in conduct constituting a breach of his fiduciary duty. A good case discussing breach of fiduciary duty is Volz v. General Motors, Civil Action No. 22-cv-3471, United States District Court, E.D. Pennsylvania (October 5, 2023)- https://scholar.google.com/scholar_case?case=10217039916663686201&hl=en&lr=lang_en&as_sdt=20006&as_vis=1&oi=scholaralrt&hist=bY5nDLcAAAAJ:17102308171145443235:AFWwaea94w7XgMVkZLP-Q4RdIOLK&html=&pos=1&folt=kw See also, 29 U.S.C. § 1104(a)(1) (duty of loyalty) and 29 U.S.C. § 1104(a)(1)(B) (duty of prudence). See Barker v. Am. Mobil Power Corp., 64 F.3d 1397, 1403 (9th Cir. 1995) (ERISA's duty to act in the best interests of the plan participants and beneficiaries includes a duty to investigate suspicions that one has concerning the plan); see also Patterson v. Reliance Standard Life Ins. Co., 986 F. Supp. 2d 1140, 1150 (C.D. Cal. 2013). See cases citing Barker at - https://scholar.google.com/scholar?hl=en&as_sdt=20000006&q="Barker+v.+Am.+Mobil+Power+Corp."+"64+F.3d+1397"+"duty"+"investigate"+'"fiduciary"&btnG= Good luck, David

Hello - A question about release of information about a decedent's annuity contract. (I'm not a benefits pro, and appreciate your time.) My late father had two annuities from the same company, one of them probably fully ERISA-covered from his employment, the other probably either his employer's top-hat plan or, less likely, self-purchased outside employment. Both had his ex-wife listed as beneficiary and funds have likely been distributed already to her. The state in which he lived directs plan administrators to regard ex-spouses as deceased unless otherwise specified. She's probably entitled to one, but not both, annuities under the combination of ERISA and state law. Remedy would be to collect from her directly. Problem: I have neither contract in hand and am not executor, trustee, or heir; his trust is the beneficiary of his will, and I'm merely a trust beneficiary. Without knowledge that there are assets to recover for the estate, the executor-trustee will not press the plan administrator for release of contract information; I have no standing to force him to. If I knew that at least one of the annuities was definitely not ERISA-covered regarding fiduciary duties, and that either my father's estate or I was properly a beneficiary, the path to recovery would be relatively clear. However, in the absence of contracts and an executor-trustee willing to request them, I don't see any very compelling path. All I have is a supposition that only one annuity is ERISA-covered, though I don't know which, and another that I'm in some form a contingent beneficiary. As far as I can make out, though, I have no right to the contracts or info about whether (a) either plan is in fact non-ERISA/457(b), and if so which; (b) whether contingent beneficiaries exist for it; (c) if so, whether I'm named. An annuity company rep has told me that a subpoena driven by my lawyer would probably prompt release of information from their legal department, but I have a feeling this is probably incorrect. If, as a plan administrator, you'd already disbursed remaining funds to the named beneficiary, then received a subpoena to release such plan and contingent-beneficiary info to the attorney of a non-executor, would you be able to release it, and if so, why would this be allowed? Again, thanks very much for your time.

for Slavic401k (Remote / AL / AZ / FL / GA / MI / MS / NC / NE / OH / OK / TN / TX)View the full text of this job opportunity

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for Teachers Retirement Association (Saint Paul MN / Hybrid)View the full text of this job opportunity

Thank you for sharing a further reasoning. Among other issues, whether a complaint plausibly asserts a claim on which relief could be granted might turn on whether the complaint alleges facts from which a judge could find that the valuation expert was not independent regarding the person who might have engaged in a prohibited transaction. It might be disloyal or imprudent for a valuation-reviewing fiduciary if that fiduciary knows or, in the exercise of prudent diligence, would know that the valuation expert is not independent.

I think it includes both. In the enrolled text, the phrase 'good faith reliance' appears in the adequate consideration definition: an ESOP fiduciary may rely in good faith on an independent expert’s valuation using RR 59-60 principles. The next clause expressly states that this rule does “[not] modify any fiduciary obligation under ERISA 404." So, on its face, the law is intended to preserve both the exclusive-purpose duty in 404(a)(1)(A) and the prudence duty in 404(a)(1)(B). I think "plausible method" perhaps understates what the text is trying to do (I don't profess to know what Congress is trying to do). Here, an ESOP fiduciary will be able to rely in good faith on an independent appraiser’s valuation when the appraiser uses 59-60 principles and methodologies. That's more than saying 59-60 is one acceptable reference--but it addresses the fiduciary’s reliance on the resulting valuation. I don't think it deems every valuation produced under the 59-60 "framework" to be adequate consideration, as it expressly preserves 404 duties. Also, you hit the central limitation of the bill on its head because, said another way, even a sound framework cannot cure unsound inputs. I think the law, if enacted, would authorize good-faith reliance on an independent valuation prepared under 59-60, but the fiduciary must still have a prudent basis for relying on that particular valuation, which includes its material information and assumptions (its "inputs"). It wouldn't make the appraisal self-validating.

Might the plan sponsor have set a measure of 83 hours in a month because a health or other welfare plan for the employees looks to that measure for some purpose?

Perhaps the legislation puts Congress’s imprimatur on identifying the IRS’s Revenue Ruling as a plausible method for estimating the hypothetical fair market value of an asset that has no “generally recognized” market. But the method is vulnerable to the information assumed. Does “good faith” require only exclusive-purpose loyalty? Or does that loyalty require that the fiduciary act with ERISA § 404(a)(1)(B) prudence?

To me, the Act does not modify a fiduciary's obligations under ERISA Section 404, including the duties of prudence and loyalty. An ESOP trustee could not simply obtain an appraisal and consider the fiduciary inquiry complete. The trustee would still need a sound process for evaluating the transaction and the supporting valuation, including projections, assumptions, financing terms and other relevant information. The Act purports to protect good-faith reliance on an independent valuation—not blind reliance on one.

for Trucker Huss, APC (Remote)View the full text of this job opportunity

Sounds awful. Add into the mix the LTPT rules and someone is going to need a week of training to administer eligibility. Simplify! Simplify! Simplify! I thought that was Ben Franklin but I googled it and it was Henry David Thoreau.

For what it's worth, I've had several DOL folks close investigations where they approve (or, maybe more accurately, tell me they do not object to) this approach. In those situations, we've (1) run an allocation with all the correct amounts, (2) removed any terminated participant who would get an allocation below the administrative distribution fee, and (3) re-allocated the amount from (2) among the remaining employees, active and terminated (i.e., not simply forfeit the amounts excluded in (2)). I don't know whether the IRS would accept the same logic for plan-qualification purposes, but I don't think it's a stretch.

Agreed on the 2025 piece :). But if no one got capped at $31,000 in 2025 then what I said above is still true!

Since Super Catch Ups first appear in the Secure 2.0 amendment, your plan is bound by how it was operationally administered for 2025 and up to now in 2026. If you did not allow Super Catch Ups in 2025 you would not be allowing them in 2026 and have or will adopt that amendment. If you did allow them in 2025 and want to stop them now, you would need to provide a 30 day notice and modify your Secure 2.0 Amendment to allow them for 2025 and most of 2026 before you did not allow them.

Ryan, I don't think the calculator is the issue, because the 2025 VFCP doesn't measure against plan performance at all. For delinquent participant contributions, section 7.1(a)(2) requires the Principal Amount plus the greater of (A) Lost Earnings or (B) Restoration of Profits "resulting from the employer's use of the Principal Amount" (90 FR 4192, at 4217). Lost Earnings is defined in section 5(b)(6): the 6621(a)(2) underpayment rate for each quarter, applied through the Rev. Proc. 95-17 factors (at 4213). Restoration of Profits is the profit the employer made by using the money, not the plan's return. So the "greater of" is Lost Earnings against the employer's profit. The underpayment rate is never negative, so a down market in the plan doesn't reduce what VFCP requires. The Online Calculator only does the Lost Earnings side. If the employer actually made money on the withheld amounts, that comparison is yours to document. Negative actual returns usually come up outside VFCP, when someone corrects under EPCRS on actual earnings. That's a different method, and the DOL calculator isn't the measure there. Two 2025 changes that do affect the calculator: Under SCC the Loss Date is the date of withholding, section 5(b)(3)(ii). A full VFCP application uses the date the contribution could reasonably have been segregated, section 7.1(a)(2). The examples under 5(b)(4) show payday on the 1st giving a Loss Date of the 3rd under VFCP but the 1st under SCC. Same deposits, slightly higher number under SCC. SCC requires the Online Calculator, section 5(b)(6)(vi). A full application can use it or a manual calculation with enough detail to verify the figures. If it's useful, there's a worked example of that SCC vs. VFCP loss-date difference (three late payrolls across the Q1 to Q2 2026 rate change) at https://401kaudithelp.com/lost-earnings-calculator/. Disclosure: I help maintain that site. The calculator is free

Consider your brain unfrozen. 2026 is first distribution calendar year so yes, if plan termination distribution happens in 2026 there is a RMD due for that year. If 2027, then yes, there are two years of RMDs which could be made in 2026 and 2027 or both in 2027 provided the 2026 RMD is made by 4/1/2027.

The text does not say the months have to be consecutive. If so, then look at count any month in which the employee works 83 hours as one month. The employee will enter the plan on the entry date after their total number of months equals six months. It also appears that the count of months resets with the start of a new plan year. I note that the text is merely an example and does not cover all of the details surrounding statutory eligibility rules. I suspect the text is from a Summary Plan Description and not from the formal Plan Document. If so, you should ask the Plan Administrator for a copy of the Plan Document (name and contact information is in the SPD).

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ERISA § 3(18)(B)(i), as this legislation would add it, states: “For purposes of clause (ii) of subparagraph (A) [determining the fair market value of a security for which there is no generally recognized market], a fiduciary of an employee stock ownership plan (as defined in section 407(d)(6)) may make a good faith reliance on a valuation provided by an independent valuation expert or business appraiser that has relied upon the principles and methodologies set forth in Internal Revenue Service Revenue Ruling 59–60 (as amplified and modified by the Internal Revenue Service from time to time) in determining the fair market value of an asset described in such clause.” I’m curious: What does this legislation do to lessen a fiduciary’s responsibility in determining the fair market value of an untraded security?

This is what the document says. I assume this means if they have not completed the eligibility requirements by their anniversary date it switches to calendar year. The Plan defines "month of service" as a calendar month in which you complete at least 83 hours of service. Furthermore, the Plan defines "year of service" as a 12-month period in which you work at least 1,000 hours of service for the Employer. The first eligibility service period starts on your first day of employment with the Employer. For example, if you begin work on February 15, work 80 hours in February, and work at least 83 hours in each of the months of March through August, you would enter the Plan on October 1. If you did not complete six months of service by the following February 14 but did complete 1,000 hours of service by that date, then you would enter the Plan on the April 1 immediately following the completion of the one year of service.

Among reasons for focusing on a service provider’s agreement is that acting beyond one’s obligation might increase the service provider’s exposures to liabilities and expenses. A participant might assert that the volunteer became a fiduciary of the plan. That could include a cofiduciary’s responsibility to make prudent efforts to remedy other fiduciaries’ breaches. Or, a participant might assert that the volunteer provided tax, ERISA, or other legal advice. Courts hold a nonlawyer who provides (or is alleged to have provided) any legal advice to the standards of competence, diligence, accuracy, completeness, and conduct that apply to a licensed and professionally behaving lawyer. A participant might assert that she was an intended beneficiary of the service provider’s advice, and the less-than-careful advice harmed the participant. A volunteer might beat back those and other claims. After spending too much money on attorneys’ fees and other expenses, likely unrecoverable. For example, consider CSA 401(k) Plan v. Pension Professionals, Inc., 195 F.3d 1135, 23 Empl. Benefits Cas. (BL) 2241 (9th Cir. Nov. 23, 1999). A TPA tried to get an employer’s chief executive, who also was a plan trustee, to restore money he stole from the retirement plan. For this Good Samaritan effort, the participants sued the TPA, asserting that the TPA’s efforts made it the plan’s fiduciary. The TPA suffered two rounds of litigation, and paid substantial attorneys’ fees, before the appeals court found the TPA was not a fiduciary. The TPA’s attorneys’ fees and expenses were not reimbursed by any of the wrongdoers. This is not advice to anyone.

Since the plan uses hours rules, the plan has to allow an employee (not in an excluded classification) to participate if the employee works at least 1000 hours in their eligibility computation period (commonly first 12 months of employment) - a provision commonly defined as the One Year of Service eligibility rule (1Yos). This applies to both deferrals and profit sharing. For deferrals, an employee working 498 hours in 6 months would be eligible earlier than they would be under the 1Yos rule. The plan document would have to specify in this rule is applicable solely to the first 6 months of employment, or if it applies to a rolling 6 month period. For profit sharing, an employee working 1000 hours in 6 month would be eligible earlier than they would be under the 1Yos rule. Again, the plan document would have to specify how the 6 months are administered.

That sounds off, the "X hours in Y months" provision is usually written as the employee's FIRST Y months of employment. Plan language would dictate, of course. Does the "498 in 6 months" have fallback language to make sure someone with 1000 hours in their 12 months gets swept in?