Pension Plans and ERISA

What is ERISA?

The Employee Retirement Income Security Act of 1974, or ERISA, protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire.

ERISA is a federal law that sets minimum standards for pension plans in private industry.  For example, if your employer maintains a pension plan, ERISA specifies when you must be allowed to become a participant, how long you have to work before you have a non-forfeitable interest in your pension, how long you can be away from your job before it might affect your benefit, and whether your spouse has a right to part of your pension in the event of your death.  Most of the provisions of ERISA are effective for plan years beginning on or after January 1, 1975.

ERISA does not require any employer to establish a pension plan.  It only requires that those who establish plans must meet certain minimum standards.  The law generally does not specify how much money a participant must be paid as a benefit.

ERISA does the following:

• Requires plans to provide participants with information about the plan including important information about plan features and funding.  The plan must furnish some information regularly and automatically.  Some is available free of charge, some is not.

• Sets minimum standards for participation, vesting, benefit accrual and funding.  The law defines how long a person may be required to work before becoming eligible to participate in a plan, to accumulate benefits, and to have a non-forfeitable right to those benefits.  The law also establishes detailed funding rules that require plan sponsors to provide adequate funding for your plan.

• Requires accountability of plan fiduciaries.  ERISA generally defines a fiduciary as anyone who exercises discretionary authority or control over a plan's management or assets, including anyone who provides investment advice to the plan.  Fiduciaries who do not follow the principles of conduct may be held responsible for restoring losses to the plan.

• Gives participants the right to sue for benefits and breaches of fiduciary duty.

• Guarantees payment of certain benefits if a defined plan is terminated, through a federally chartered corporation, known as the Pension Benefit Guaranty Corporation.

What are defined benefit and defined contribution pension plans?

Generally speaking, there are two types of pension plans: defined benefit plans and defined contribution plans.  A defined benefit plan promises you a specified monthly benefit at retirement.  The plan may state this promised benefit as an exact dollar amount, such as $100 per month at retirement.  Or, more commonly, it may calculate a benefit through a plan formula that considers such factors as salary and service - for example, 1 percent of your average salary for the last 5 years of employment for every year of service with your employer.

A defined contribution plan, on the other hand, does not promise you a specific amount of benefits at retirement.  In these plans, you or your employer (or both) contribute to your individual account under the plan, sometimes at a set rate, such as 5 percent of your earnings annually.  These contributions generally are invested on your behalf.  You will ultimately receive the balance in your account, which is based on contributions plus or minus investment gains or losses.  The value of your account will fluctuate due to changes in the value of your investments.  Examples of defined contribution plans include 401(k) plans, 403(b) plans, employee stock ownership plans, and profit-sharing plans.  The general rules of ERISA apply to each of these types of plans, but some special rules also apply.  To determine what type of plan your employer provides, check with your plan administrator or read your summary plan description.

A money purchase pension plan is a plan that requires fixed annual contributions from your employer to your individual account.  Because a money purchase pension plan requires these regular contributions, the plan is subject to certain funding and other rules.

What are simplified employee pension plans (SEPs)?

SEPs are relatively uncomplicated retirement savings vehicles that allow employers to make contributions on a tax-favored basis to individual retirement accounts (IRAs) owned by the employees.  SEPs are subject to minimal reporting and disclosure requirements.

Under a SEP, you as the employee must set up an IRA to accept your employer's contributions.  As a general rule, your employer can contribute up to 25 percent of your pay into a SEP each year, up to a maximum of $40,000.

Starting January 1, 1997, employers may no longer set up Salary Reduction SEPs.  However, the Small Business Job Protection Act of 1996 (Public Law 104-188) permitted employers to establish SIMPLE IRA plans beginning in 1997.  A SIMPLE IRA plan allows salary reduction contributions up to $6,000 in 2001 ($7,000 in 2002).

If an employer had a salary reduction SEP in effect on December 31, 1996, the employer may continue to allow salary reduction contributions to the plan.  Employees are generally permitted to contribute up to 15 percent of pay, or $10,500 for 2001 ($11,000 for 2002).  SEP participants may also be required to earn at least $450 (this number is indexed for inflation) (for 2001) to make salary reduction contributions.

What are 401(k) plans?

A 401(k) plan is a defined contribution plan that is a cash or deferred arrangement.  You can elect to defer receiving a portion of your salary which is instead contributed on your behalf, before taxes, to the 401(k) plan.  Sometimes the employer may match your contributions.  There are special rules governing the operation of a 401(k) plan.  For example, there is a dollar limit on the amount you may elect to defer each year.  The dollar limit is $11,000.  The amount may be adjusted annually by the Treasury Department to reflect changes in the cost of living.  Other limits may apply to the amount that may be contributed on your behalf.  For example, highly compensated employees may be limited depending on the extent to which rank and file employees participate in the plan.  Your employer must advise you of any limits that may apply to you.

Although a 401(k) plan is a retirement plan, you may be permitted access to funds in the plan before retirement.  For example, if you are an active employee, your plan may allow you to borrow from the plan.  Also, your plan may permit you to make a withdrawal on account of hardship, generally from the funds you contributed.  The sponsor may want to encourage participation in the plan, but it cannot make your elective deferrals a condition for the receipt of other benefits, except for matching contributions.

The adoption of 401(k) plans by a state or local government or a tax-exempt organization is limited by law.

What are profit sharing plans or stock bonus plans?

A profit sharing or stock bonus plan is a defined contribution plan under which the plan may provide, or the employer may determine, annually, how much will be contributed to the plan (out of profits or otherwise).  The plan contains a formula for allocating to each participant a portion of each annual contribution.  A profit sharing plan or stock bonus plan may include a 401(k) plan.

What are employee stock ownership plans (ESOPs)?

Employee stock ownership plans (ESOPs) are a form of defined contribution plan in which the investments are primarily in employer stock.  Congress authorized the creation of ESOPs as one method of encouraging employee participation in corporate ownership.

What information is your pension plan required to disclose?

The Employee Retirement Income Security Act (ERISA) requires plan administrators - the people who run plans - to give you in writing the most important facts you need to know about your pension plan.  Some of these facts must be provided to you regularly and automatically by the plan administrator.  Others are available upon request, free of charge or for copying fees.  Your request should be made in writing.

One of the most important documents you are entitled to receive automatically when you become a participant of an ERISA-covered pension plan or a beneficiary receiving benefits under such a plan, is a summary of the plan, called the summary plan description or SPD.  Your plan administrator is legally obligated to provide to you, free of charge, the SPD.  The SPD is an important document that tells you what the plan provides and how it operates.  It tells you when you begin to participate in the plan, how your service and benefits are calculated, when your benefit becomes vested, when you will receive payment and in what form, and how to file a claim for benefits.  You should read your SPD to learn about the particular provisions that apply to you.  If a plan is changed you must be informed, either through a revised SPD, or in a separate document, called a summary of material modifications, which also must be given to you free of charge.

In addition to the SPD, the plan administrator must automatically give you each year a copy of the plan's summary annual report.  This is a summary of the annual financial report that most pension plans must file with the Department of Labor.  These reports are filed on government forms called Form 5500 or 5500-C/R.  The summary annual report is available to you at no cost.  To learn more about your plan's assets, you may ask the plan administrator for a copy of the annual report in its entirety.

If you are unable to get the SPD, the summary annual report, or the annual report from the plan administrator, you may be able to obtain a copy by writing to:

U.S. Department of Labor
PWBA Public Disclosure Room
200 Constitution Avenue, NW, Suite N-1513
Washington, DC 20210

Participants should include their name, address, and telephone number to assist the Pension and Welfare Benefits Administration (PWBA) in responding to their request.  There may be a nominal copying charge.

If you have information that plan assets are being mismanaged or misused, send details to the PWBA office nearest where you live.

How long do employees have to wait to become members of a pension plan and to become vested in their benefits?

Generally, a plan may require a person to reach age 21 to be eligible to participate in the plan and to have a year of service.  Vesting means the employee has earned a non-forfeitable right to benefits funded by employer contributions.  Employees always have a non-forfeitable right to their own contributions.

There are changes to the two basic vesting schedules.  Under the three-year schedule, workers are 100 percent vested after five years of service under the plan.  The six-year graduated schedule allows workers to become 20 percent vested after two years and to vest at a rate of 20 percent each year thereafter until they are 100 percent vested after six years of service.  Plans may have faster vesting schedules.

What protections do the fiduciary rules of ERISA provide?

ERISA protects your plan from mismanagement and misuse of assets through its fiduciary provisions.  ERISA defines a fiduciary as anyone who exercises discretionary control or authority over plan management or plan assets, anyone with discretionary authority or responsibility for the administration of a plan, or anyone who provides investment advice to a plan for compensation or has any authority or responsibility to do so.  Plan fiduciaries include, for example, plan trustees, plan administrators, and members of a plan's investment committee.

The primary responsibility of fiduciaries is to run the plan solely in the interest of participants and beneficiaries and for the exclusive purpose of providing benefits and paying plan expenses.  Fiduciaries must act prudently and must diversify the plan's investments in order to minimize the risk of large losses.  In addition, they must follow the terms of plan documents to the extent that the plan terms are consistent with ERISA.  They also must avoid conflicts on behalf of the plan that benefit parties related to the plan, such as other fiduciaries, service providers, or the plan sponsor.

Fiduciaries who do not follow these principles of conduct may be personally liable to restore any losses to the plan, or to restore any profits made through improper use of plan assets.  Courts may take whatever action is appropriate against fiduciaries who breach their duties under ERISA including their removal.

When must employers deposit withheld employee contributions into a 401(k) plan or other pension plan?

Employers must transmit employee contributions to pension plans as soon as they can reasonably be segregated from the employer’s general assets, but not later than the 15th  business day of the month immediately after the month in which the contributions either were withheld or received by the employer.

When can you choose your own investments?

In some defined contribution plans, a group or an individual makes all the investment decisions for the plan's assets.  In certain defined contribution plans, however, plan officials may decide to provide a number of investment options, and they may ask you to decide how to invest your account balance by choosing among those investment options.

The U.S. Department of Labor has established rules about plans that permit participants to direct their own investments.  Under these rules, if, and only if, you truly exercise independent control in making your investment choices, plan officials will be excused from the fiduciary responsibility for the consequences of your investment decisions.  A plan under which you in fact exercise independent control over the investment of your individual account is called a 404(c) plan (after section 404(c) of ERISA).  If you are a participant in a 404(c) plan, you are responsible for the consequences of your investment decision, and you cannot sue the plan officials for investment losses that result from your decisions.

You are entitled to receive a broad range of information about the investment choices available under a 404(c) plan.  Thus, a plan that intends to relieve plan officials of fiduciary duties over investments must inform you of that fact.  Also, a 404(c) plan must give you sufficient information about investment options under the plan for you to be able to make informed decisions.  The information that you are entitled to receive without asking includes the following:

• A description of each investment option, including the investment goals, risk and return characteristics.

• Information about designated investment managers.

• An explanation of when and how to make investment instructions and any restrictions on when you can change investments.

• A statement of the fees that may be charged to your account when you change investment options or buy and sell investments.

• Information about your shareholder voting rights and the manner in which confidentiality will be provided on how you vote your shares of stock.

• The name, address, and phone number of the plan fiduciary or other person designated to provide certain additional information on request.

When may your plan permit you to take payment?

ERISA provides rules governing the times at which a pension plan may permit you to receive benefits.  As these limitations on distribution events for payment vary depending on the type of pension plan, you should consult your summary plan description for the specific events or times that are the conditions under which you will be entitled to receive your benefits.  After the event occurs that permits payment of your benefit, your plan may require some reasonable period of time during which to calculate your benefit and determine your payment schedule, or to value your account balance and to liquidate any investments in which your account is invested.  The following are a few general rules about possible distribution events for which your plan may provide.

If your plan is a defined benefit plan or a money purchase plan, it will set a normal retirement age, which is generally the time at which you will be eligible to begin receiving your vested accrued benefit.  These types of plans may permit earlier payments, however, either by providing for early retirement benefits for which the plan may set additional eligibility requirements, or by permitting benefits to be paid when you terminate employment, suffer a disability, or die.

If your plan is a 401(k) plan, it may permit you to take some or all of your vested accrued benefit when you terminate employment, retire, die, become disabled, reach age 59½, or if you suffer a hardship.

If your plan is a profit-sharing plan or a stock bonus plan, your plan may permit you to receive your vested accrued benefit after you terminate employment, become disabled, die, reach a specific age, or after a specific number of years have elapsed.

Your plan's summary plan description should describe all of the rules applicable to any of the events that permit distributions.

How do you make a claim for benefits?

Under ERISA you have a right to make a claim for benefits due under a plan.  ERISA requires all plans to have a reasonable written procedure for processing your claims for benefits and for appealing if your claim is denied.  The summary plan description should contain a description of your plan's procedures.  If you believe you are entitled to a benefit from a pension plan, but your plan fails to set up a claims procedure, you may present the claim to the plan administrator.

If you make a claim for benefits that is denied, the plan must notify you in writing - generally within 90 days after receipt of the claim - of the reason for the denial and the specific plan provisions on which the denial is based.  If the plan denies your claim because the administrator needs more information to make a decision, the administrator must tell you what information is needed.  Any notice of denial must also tell you how to file an appeal.  If special circumstances require your plan to take more time to examine your request, it must tell you within the 90 days that additional time is needed, why it is needed, and the date by which the plan expects to make a final decision.  If you receive no answer at all in 90 days, this is treated the same as a denial, and you can proceed to appeal.

You must be allowed at least 60 days to appeal any denial.  After receiving your appeal, the plan generally must issue a ruling within 60 days, unless the plan provides for a special hearing.  If the plan notifies you that it must hold a hearing, or that it has other special circumstances, it may have an additional 60 days.

The plan must furnish you with a final decision on your appeal and the reasons for the decision with references to the relevant plan documents.  If you disagree with the final decision, you may then file a lawsuit seeking your benefit under ERISA.  Courts generally require that you complete all the steps available to you under the claims procedure in a timely manner before you seek relief through a lawsuit.  This is called exhausting your administrative remedies.

When should participants expect to receive distributions from their pension plans after terminating employment?

Generally, the law requires plans to pay retirement benefits no later than the time a participant  reaches normal retirement age.  But, many plans -- including 401(k) plans --provide for earlier payments under certain circumstances.  For example, a plan's rules may  allow participants in a 401(k) plan to receive payment of benefits after terminating employment.  The plan's Summary Plan Description (SPD) should set forth the plan’s rules for obtaining the distribution as well as the timing of distribution after termination of employment.

What happens to your benefits upon death?

ERISA provides some protection to surviving spouses of deceased participants who had earned a vested pension benefit before death.  The nature of the protection depends on the type of plan and whether the participant dies before or after payment of the pension benefit is scheduled to begin, otherwise known as the annuity starting date.  The summary plan description will tell you the type of plan involved and whether survivor annuities or other death benefits are provided under the plan.

What is a qualified joint and survivor annuity (QJSA)?

In a defined benefit plan or a money purchase plan, the form of retirement benefit payment, unless you and your spouse (if any) choose otherwise, must be a series of equal, periodic payments over your lifetime, with a payment continuing to your spouse for the rest of his or her life if he or she survives you.  The periodic payment to your surviving spouse must be at least 50 percent, and not more than 100 percent, of the periodic payment received during your joint lives.  This form of payment is called a qualified joint and survivor annuity (QJSA).

If the plan provides other forms of benefit payment, and you and your spouse want to waive your rights to receive the QJSA and select one of the other payment forms available, you can do so according to specified rules.  You and your spouse must receive a timely explanation of the QJSA, your waiver must be made in writing within certain time limits, and your spouse must give consent to the waiver in writing witnessed by a notary or plan representative.

Can your pension be attached for family support?

In general, your pension benefits cannot be taken away from you by people to whom you owe money.  The law makes a limited exception, however, when family support is at stake.  Thus, a state court can award part or all of your pension benefit to your spouse, former spouse, child or other dependent by issuing a qualified domestic relations order, which must be honored by the plan.  The person named in such an order is called an alternate payee.  The court's order can be in the form of a state court judgment, decree or order, or court approval of a property settlement agreement.

What requirements must be met for a domestic relations order to be qualified?

When a plan receives a domestic relations order purporting to divide pension benefits, it must first determine whether the order is a qualified domestic relations order (QDRO).  The order must relate to child support, alimony, or marital property rights and be made under state domestic relations law.  To be qualified, the order should clearly specify your name and last known mailing address and the name and last address of each alternate payee.  It also must state the name of your plan; the amount or percentage - or the method of determining the amount or percentage - of the benefit to be paid to the alternate payee; and the number of payments or time period to which the order applies.  The order cannot provide a type or form of benefit not otherwise provided under the plan and cannot require the plan to provide an actuarially increased benefit.  And if an earlier QDRO applies to your benefit, the earlier QDRO takes precedence over a later one.

In certain situations, a QDRO may provide that payment is to be made to an alternate payee before you are entitled to receive your benefit.  For example, if you are still employed, a QDRO could require payment to an alternate payee to begin on or after your earliest retirement age, whether or not the plan would allow you to receive benefits at that time.  If you are in the process of a divorce, and a QDRO is being prepared for your family, you may wish to be sure that the QDRO addresses whether a benefit is payable to an alternate payee upon your death and the consequences of the death of the alternate payee.

Can a plan be terminated?

Although pension plans must be established with the intention of being continued indefinitely, employers may terminate plans.  If your plan terminates or becomes insolvent, ERISA provides you some protection.  In a tax-qualified plan, your accrued benefit must become 100 percent vested immediately upon plan termination, to the extent then funded.  If a partial termination occurs in such a plan, for example, if your employer closes a particular plant or division that results in the termination of employment of a substantial portion of plan participants, immediate 100 percent vesting, to the extent funded, also is required for affected employees.

Can I get my pension money if I am laid off?

Generally, if you are enrolled in a 401(k), profit sharing or other type of defined contribution plan (a plan in which you have an individual account), your plan may provide for a lump sum distribution of your retirement money when you leave the company.

However, if you are in a defined benefit plan (a plan in which you receive a fixed, pre-established benefit) your  benefits begin at retirement age.  These types of plans are less likely to contain a provision that enables you to withdraw money early.

Whether you have a defined contribution or a defined benefit plan, the form of your pension distribution (lump sum, annuity, etc.) and the date your pension money will be available to you depend upon the provisions contained in your plan documents.  Some plans do not permit distribution until you reach a specified age.  Other plans do not permit distribution until you have been separated from employment for a certain period of time.  In addition, some plans process distributions throughout the year and others only process them once a year.  You should contact your pension plan administrator regarding the rules that govern the distribution of your pension money.

One of the most important documents you should have is the Summary Plan Description (SPD).  It outlines what your benefits are and how they are calculated.  A copy of the SPD is available from your employer or pension plan administrator.

In addition to the SPD, your employer also may give you-or you may request-an individual benefit statement showing the value of your pension benefits-the amount you have actually earned to date and your vesting status.  These documents contain important information for you, whether you withdraw your money now or later.

Is my plan required to give me a lump-sum distribution?

ERISA does not require pension and profit-sharing plans to provide for lump-sum distributions.  Lump-sum distributions are possible only if the plan specifically provides for them and only if you meet the plan's eligibility requirements.

If I withdraw retirement money, are their potential adverse effects?

Yes.  Receiving a lump sum or other distribution from your pension plan may affect your ability to receive unemployment compensation.  You should check with your state unemployment office.

In addition, receiving money from your pension plan may result in additional income tax.  You can defer these taxes, however, if you keep the money in your plan or if you roll over the money into a qualified pension plan or Individual Retirement Account (IRA).  There are provisions in the Internal Revenue Code that allow these rollovers.

Generally, your plan is required to withhold 20 percent of an eligible rollover distribution unless you elect to have the distributions paid directly to an eligible retirement plan, including an IRA.  This is known as a direct rollover.  If there is no direct rollover,  you will have to make up the 20 percent withholding to avoid tax consequences on the full rollover amount.  The IRS does not require 20 percent withholding of an eligible rollover distribution that, when added to other rollover distributions made to you during the year, is less than $200.

Under IRS rules, and in order to avoid certain tax consequences, you have 60 days to roll over the distribution you received to another qualified plan or IRA if you wish to avoid the tax consequences.

If you have a choice between leaving the money in your current pension plan or depositing it in an IRA, you should carefully evaluate the investments available through each option.

Withdrawing money from your retirement plan also affects the amount of money you will accumulate over time.  Your pension keeps the full amount it earns through investments because its earnings are not fully taxed (until you receive a distribution).  As a result, pension accounts can grow faster than comparable taxable accounts.  Say for instance that you have $10,000 in a pension account or IRA, and it earns an average return on investment of 10 percent.  In 20 years it will grow, with compounding, to $67,300.  If you withdraw this amount after you reach age 59½ (the age at which you can withdraw money without a 10 percent penalty) and pay 28 percent income tax on your withdrawal, you will keep $48,400.

On the other hand, if you close your pension account before age 59½, taxes will claim a portion of the funds you receive and will reduce your return every year thereafter.  As a result, the value of your account after 20 years will be approximately $24,900, assuming the same rate of return and tax bracket.  The tax consequences of early withdrawal will cost you 45 percent of your account balance at retirement.

Before you withdraw retirement funds, you may want to talk to your employer, bank, union or a financial advisor for practical advice about the long term and the tax consequences.

If I am laid off, are my retirement funds safe?

Generally, your pension funds should not be at risk when a plant or business closes.  Employers must comply with federal laws when establishing and running pension plans, and the consequences of not prudently managing pension plan assets are serious.

In addition, your pension benefits may be protected by the federal government.  Traditional plans (defined benefit plans) are insured by the Pension Benefit Guaranty Corporation (PBGC), a federal government corporation.  If an employer has financial difficulty and cannot fund the plan, and the plan does not have enough money to pay the promised benefits, the PBGC will assume responsibility as trustee of the plan.  The PBGC pays benefits up to a certain maximum guaranteed amount.  Defined contribution plans, on the other hand, are not insured by the PBGC.

To help employees monitor their retirement plans and thus ensure retirement security. PWBA has issued a list of ten warning signs that may indicate your pension plan has financial problems.  They are included in the publication Protect Your Pension.

If, for any reason, you suspect your pension benefits are not safe or are not prudently invested, you should pursue the issue with the PWBA office nearest you.

What if the company declared bankruptcy?

If an employer declares bankruptcy, there are a number of choices as to what form the bankruptcy takes.  A Chapter 11 (reorganization) bankruptcy may not have any effect on your pension plan and the plan may continue to exist.  A Chapter 7 (final) bankruptcy, where the employer's company ceases to exist, is a more complicated matter.

Because each bankruptcy is unique, you should contact your pension plan administrator, your union representative or the bankruptcy trustee and request an explanation of the status of your pension plan.

What is the role of the U.S. Department of Labor in regulating pension plans?

The U.S. Department of Labor enforces Title I of the Employee Retirement Income Security Act (ERISA), which, in part, establishes participants' rights and fiduciaries' duties.  However, certain plans are not covered by the protections of Title I.  They are:

• Federal, state, or local government plans, including plans of certain international organizations.

• Certain church or church association plans.

• Plans maintained solely to comply with state workers' compensation, unemployment compensation or disability insurance laws.

• Plans maintained outside the United States primarily for non-resident aliens.

• Unfunded excess benefit plans - plans maintained solely to provide benefits or contributions in excess of those allowable for tax-qualified plans.

The U.S. Department of Labor's Pension and Welfare Benefits Administration (PWBA) is the agency charged with enforcing the rules governing the conduct of plan managers, investment of plan assets, reporting and disclosure of plan information, enforcement of the fiduciary provisions of the law, and workers' benefit rights.

What other federal agencies regulate plans?

The Treasury Department's Internal Revenue Service is responsible for ensuring compliance with the Internal Revenue Code, which establishes the rules for operating a tax-qualified pension plan, including pension plan funding and vesting requirements.  A pension plan that is tax-qualified can offer special tax benefits both to the employer sponsoring the plan and to the participants who receive pension benefits.  The IRS maintains a toll-free taxpayer assistance line for employee plans at 877.829.5500.

The Pension Benefit Guaranty Corporation, PBGC, a non-profit, federally-created corporation, guarantees payment of certain pension benefits under defined benefit plans that are terminated with insufficient money to pay benefits.  The PBGC may be contacted at:

Pension Benefit Guaranty Corporation
1200 K Street NW
Washington, DC 20005-4026
Tel 202.326.4000
Toll-Free 1.800.400.7242