DOL Adopts Interim Policy on the Use of Email for Participant Fee Disclosures

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On September 13, 2011, the Department of Labor issued a technical release providing guidance on the use of email to distribute required fee disclosures to participants in participant-directed 401(k) and similar plans, under rules scheduled to take effect in 2012.

Background

Generally, the use of electronic media to provide required disclosures under ERISA is permitted only with respect to individuals who can access the disclosures at work and who actually use the electronic medium as an integral part of their duties, or individuals who have affirmatively consented to receipt of electronic disclosure. Recently, in connection with new rules requiring plan administrators to provide participants in participant-directed plans with specified information about plan fees and expenses (discussed in our Alert of October 20, 2010), the Department decided to revisit its electronic disclosure rule and issued a request for information and comments.

The participant fee disclosure rules allow certain fee and expense information to be included with quarterly benefit statements. Under Field Assistance Bulletin 2006-03, benefit statements may be sent electronically in accordance with IRS regulations permitting the use of electronic disclosure without affirmative consent. However, other fee disclosures required under the new rules cannot be included with a quarterly pension statement. The technical release sets forth a new interim policy on the use of email for these disclosures.

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