401(k) Notice Distribution: Hard Copy vs. Electronic Delivery

DWC | 05/15/18

QOTW - 5.15.2018 - 401k Notice Distribution Hard Copy vs Electronic Delivery - Plan Sponsor Requirements

Facts

It seems like 401(k) plans require a lot of different notices and disclosures be provided to participants each year. We have safe harbor and default investment notices at the end of the year, fee disclosure notices and participant statements each quarter, and the summary annual report (SAR) when we file our Form 5500—and those are just the ones I can think of off the top of my head.

Question

Are we allowed to distribute all of these 401(k) notices to our participants electronically? Can we hold them until they are all ready and then pass them out at the same time?

Answer

Those are great questions that we get pretty frequently. We wish we could say that the answers are both “yes,” but that would be far too easy.

Let’s tackle the timing first. Each notice has its own regulatory deadline. Here are some quick examples:

  • Safe harbor and default investment notices must be distributed to participants between 30 and 90 days before the start of the next year
  • Participant statements, including fee disclosure information, must be distributed no later than 45 days following the close of each quarter
  • The SAR must be distributed no later than two months following the Form 5500 filing deadline

To the extent that any of these deadlines overlap, it is perfectly acceptable to send all of the notices in the same package. For a calendar year plan that extends the filing deadline for its 5500, the SAR is due no later than December 15. The deadline for the safe harbor and default investment notices is between October 1 and December 1. That means those three disclosures could be sent to participants all together, potentially along with the participant statements for the third quarter (due no later than mid November). Outside of that, it would not be acceptable to hold other notices for delivery outside their respective deadlines in order to combine them with other notices.

Now, on to the method of distribution. Both the IRS and DOL have their own sets of rules governing electronic distribution of notices. We could write for pages and only scratch the surface of the details, but here is the high-level answer.

Hard Copy Distribution

Providing hard copies of notices is an acceptable means of distribution. This could include handing out copies at a company meeting or mailing to a participant’s last known address. Note that simply posting a notice in a break room or other common area is not considered distribution.

Electronic Distribution

Electronic distribution is permitted as long as you provide the mechanism being used, and participants are required to access that mechanism as part of their jobs. A company-provided email address that participants are required to check is one example. For electronic delivery outside of those situations, participants and plan sponsors are required to go through a series of complicated steps to document each participant’s consent to receive electronic disclosure. As with hard copy distribution, simply posting a notice to an electronic bulletin board or providing public kiosks does not constitute actual notice delivery.

Combination

The above options may be combined so that some participants receive electronic notices and others receive hard copies. For example, notices could be emailed to those who are actively employed, using their company email addresses, while hard copy notices are mailed to former employees who still have balances in the plan.

Regardless of the method selected, it must be designed to ensure actual receipt by all participants. So, as an example, if certain notices are to be distributed at a face-to-face company meeting, alternative arrangements should be made to ensure delivery to those not in attendance.

For more information on participant notices, here are two more excellent resources from the DWC blog:

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Topics: DWC, Question of the Week, Electronic Disclosure, Participant Notices, QDIA, Safe Harbor Notice, Summary Annual Report, Plan Sponsor Requirements

The views expressed in this blog are those of the authors and do not necessarily represent the views of any other person or organization. All content is provided for informational purposes only and is not intended to be tax or legal advice.