Locating Missing Participants – Much Appreciated DOL Guidance

Posted on January 16, 2015

In Summer 2014, the Department of Labor (DOL) updated its guidance for plan administrators making distributions to participants in terminated defined contribution plans. Among other information,1  Field Assistance Bulletin 2014-01 (FAB) provides the minimum steps a plan fiduciary must make in order to locate missing participants.

Locating missing participants during a plan termination is key for the following reasons:

  1. all plan assets must be distributed from a plan’s trust before a final Form 5500 can be filed, so any missing participants can lead to a delay in this filing; and
  2. any issuance of a favorable determination letter — necessary to complete the termination — contemplates the distribution of all assets, so the failure to locate participants could effectively render such a determination letter void.

Although this FAB may refer specifically to the steps to be taken in the event of a defined contribution plan’s termination, it can reasonably be concluded that these steps are the minimum ones to be taken in locating any missing participant. As such, the FAB provides the following:

At a minimum, fiduciaries should take all of the following steps before abandoning efforts to find a missing participant and obtain distribution instructions. The activities are numbered for ease of reference, not to suggest that fiduciaries must act in any particular order.

  1. Use Certified Mail. Certified mail is an easy way to find out, at little cost, whether the participant can be located in order to distribute benefits. The DOL provided a model notice that could be used for such mailings as part of a regulatory safe harbor . . . but its use is not required and other notices could satisfy the safe harbor.
  2. Check Related Plan and Employer Records. While the records of the terminated plan may not contain current address information, it is possible that the employer or another of the employer’s plans, such as a group health plan, may have more up-to-date information. For this reason, plan fiduciaries of the terminated plan must ask both the employer and administrator(s) of related plans to search their records for a more current address for the missing participant. If there are privacy concerns, the plan fiduciary engaged in the search can request that the employer or other plan fiduciary contact or forward a letter for the terminated plan to the missing participant or beneficiary. The letter would request that the missing participant or beneficiary contact the searching plan fiduciary.
  3. Check With Designated Plan Beneficiary. In searching the terminated plan’s records or the records of related plans, plan fiduciaries must try to identify and contact any individual that the missing participant has designated as a beneficiary (e.g., spouse, children, etc.) to find updated contact information for the missing participant. Again, if there are privacy concerns, the plan fiduciary can request that the designated beneficiary contact forward a letter for the terminated plan to the missing participant or beneficiary.
  4. Use Free Electronic Search Tools. Plan fiduciaries must make reasonable use of Internet search tools that do not charge a fee to search for a missing participant or beneficiary. Such online services include Internet search engines, public record databases (such as those for licenses, mortgages and real estate taxes), obituaries and social media.2

As suggested above, these steps to locate missing participants need not be done in the exact order as provided on the FAB. Instead, plan administrators should feel encouraged to comply with these four steps in a manner most consistent with their workforce (e.g., if a workforce is highly tech-based and young, and there is a stronger likelihood that the majority of the workforce would use social media, it could be considered prudent to go straight to Item 4).

By complying with these steps, plan administrators can feel confident that they have met their fiduciary duties when locating missing plan participants. Plan administrators should implement policies and procedures to implement these steps going forward. If you have any questions regarding the FAB 2014-01, contact Pension Consultants’ ERISA Services Team.

[1] See generally Dep’t of Labor Field Assistance Bull. No. 2014-01 (Aug. 14, 2014), available at http://www.dol.gov/ebsa/pdf/fab2014-1.pdf. This FAB suggests a hierarchy for the distribution of plan benefits when dealing with missing participants. For more information on this hierarchy, see http://www.dol.gov/ebsa/pdf/fab2014-1.pdf or contact our ERISA Services Team with any questions.
[2] Id. at 3-4.

 

PCI’s archived blog entries are dated, the rules and statutes referenced may have changed. The analysis or guidance within these blog entries may have become stale, dated, or no longer accurate. PCI will not update or change these entries to reflect the latest analysis or development.
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