Question: You have cited numerous cases in which workers have successfully sued their employers over problems with their 401(k) plans. I have no issue with that if employers are knowingly providing substandard plans or are getting kickbacks from employee investments. But there is another side to it.
Especially in the case of small employers, there is likely no staff with expertise to make sure that the plan and investments within it are the best available. So what do these employers get for their good-faith efforts to provide their workers with a retirement savings plan?
A lawsuit or potential lawsuit against the company and sometimes against the plan administrators personally? I could see employers getting rid of their 401(k) plans and giving employees a salary bump instead.
How much do you think that would assist with the employees’ retirement needs? Aren’t there safe harbor rules that would protect employers from the employees and at the same time ensure a good plan for the employees? What are your thoughts on this?
Ric: You’re right: If employers find themselves in the situation where “no good deed goes unpunished,” they might simply terminate their plans to eliminate the risk of suffering litigation. That would hurt their employees’ efforts to save for retirement.
And it would hurt the employer’s own efforts to recruit and retain quality workers — because employees want these benefits and will choose to work for companies that offer them over those that don’t.
Talk about a difficult situation: Don’t offer a plan and fail to get the staff you need. Or offer a plan and have your staff sue you. How can an employer win?
Here’s how: First, the law provides safe harbor rules. If the employer follows these rules, there’s less chance of losing a legal battle (although the company might still incur costs in defending itself from claims).
Saying you’re too small a company or are unaware of the rules are not valid excuses. That leads to the second solution: Instead of trying to learn about these rules in order to comply with them, simply hire an experienced, talented advisor to create and manage your plan for you.
Not only is this likely to result in your offering your employees a plan they like (reducing the risk someone will sue), you have the ability to sue the advisory firm if its work proves to be in error. And delegating this chore to the consultant lets you stay focused on operating and growing your business — which is exactly what you want to do.
That’s why we offer various options to small and midsize companies — firms that traditionally have not had access to the quality advice and services that they and their employees need. There is no question that life is more complicated these days, but that doesn’t mean effective solutions aren’t available. If we can help you in this area, just let us know.