We are often asked by our clients if they can distribute various required items electronically such as Summary Plan Descriptions, Summary of Material Modifications, Safe Harbor Notices, Qualified Default Investment Notice, 404a-5 Fee Disclosures, etc., etc., etc. Unless you are Rip Van Winkle and you started your nap in 1974 when ERISA was passed and you haven't awoken yet or you are one of our clients who has decided that all emails from us as your TPA should automatically go into the junk folder without being read, then you are aware that the wonderful regulatory arms of our Federal Government have spent the last 40 years (Post-ERISA) creating the need for you to pass out one retirement plan notice after another after another, ad nauseam. You know, those items you work so hard to pass out to everyone (because we browbeat you into doing so even though you might have some real work to do) that are actually looked at by 1/10th of 1% of your workforce (and they don't understand it because it is in required "government-speak"). "Ad Nauseam" above is the perfect adverb because it relates to "doing something that has been done or repeated so often that it has become annoying or tiresome".
Can you distribute some of these notices electronically (via email) rather than having to print and distribute hard copy? The answer is generally "yes." Well, okay, we will admit it - after reading the clearly worded guidance on this topic a hundred or more times even when fresh in the morning and even with our third cup of coffee and even after having borrowed a couple of our grandkids ADHD meds to help us concentrate, we are not totally sure we understand the rules. Below is our best effort at what we think the rules might be.
Basically, disclosures under Title I of ERISA (the Employee Retirement Income Security Act of 1974) must be furnished using "measures reasonably calculated to ensure actual receipt of the material." The Department of Labor issued a regulation defining a "safe harbor" for complying with electronic disclosure rules. The safe harbor is limited to individuals who meet the requirements of one of the following classifications:
"Integral Part of Duties. "Participants who have the ability to effectively access documents furnished in electronic form at any locations where the participant is reasonable expected to perform his or her duties as an employee and with respect to whom access to the employer's or plan sponsor's electronic information system in an integral part of those duties." That is government wording, not ours. Our interpretation of that is that if an employee's job is such that they regularly use a company email system as part of their duties, then they can be given electronic disclosures via email. Really, DOL? Would it be so hard to just say "If your employee uses business email regularly, then you can send them the notices they won't read via email!" You could also have employees who use a company electronic system such as an Intranet where you can be assured that they access the Intranet frequently in their duties who could given electronic notices. Yea, right - that expensive Intranet you maintain to communicate with employees that they have long since forgotten to log into and you have long since forgotten to update with anything fresh that would make they want to go there. Oh, wait, that is our Intranet I am referring to, not yours.
"Affirmative Consent. The safe harbor also applies to other participants (e.g., retirees, former employees and active employees who do not use a computer as an integral part of their duties), beneficiaries (e.g., surviving spouse, alternate payees), and other persons entitled to disclosures under Title I of ERISA who affirmatively consent to receiving disclosures through electronic media in a manner prescribed by the regulation." Our interpretation of this government double-speak is that if you give this group of people an annual Notice (yes, yet again another notice) properly written to have to necessary language and if they provide you with a personal email address to use for the purpose of receiving future notices, then you can distribute required notices to them through email. You might want to make the Notice and Consent Form that we can provide a part of your exit package or you could mail such a notice to their home address asking that the form be completed and returned. Unless they return the form, then you cannot send them notices via their personal email. Maybe the best course of action is to get them paid out or rolled over if they are an ex-employee - but of course to do that, you have to issue another whole set of disclosures!
If you would like to get our latest version of the Notice and Consent Form, just call our office at (650) 341-3322 and enter into our labyrinth of voicemail messages or just email your regular contact at our office. When they get back from their meeting with their kids school Principal, they will send you the form.
Here is a link to the actual Technical Release 2011-03 from the DOL with more detail on this subject - do us a favor, if you spend a few hours trying to digest the perverse language, please let us know if you reach any different conclusions.
