It has long been common for the Department of Labor ("DOL") to request and review fiduciary committee charters, investment policy statements, and meeting minutes in the course of routine DOL audits of retirement plans subject to ERISA. Over the past several months, however, we have noticed a focus on ERISA fiduciary training as well during such audits. The DOL is now asking employers whether and when their retirement plan fiduciaries have received training on their fiduciary duties and, in some cases, is requesting copies of training materials. ERISA does not require that fiduciaries receive training, but it does require that fiduciaries act with the "care, skill, prudence and diligence" that a prudent expert would in administering an ERISA plan and investing plan assets. Training will assist fiduciaries in that regard, as they will better understand their duties under ERISA.
We recommend that employers provide training to their ERISA fiduciaries and periodically reevaluate any existing training program. Employers should keep in mind that anyone who exercises discretionary authority or control over the administration of an ERISA plan or the management or disposition of its assets is considered a fiduciary and should be included in the training. The components of an appropriate training program will vary and should be tailored to an employer's plan and governance structure. Training should be provided periodically to ensure that fiduciaries stay informed of any changes in the applicable law. For example, some employers provide an annual fiduciary training session while other employers include a brief fiduciary training session as a part of each fiduciary committee meeting. In addition, employers should retain documentation of training provided to fiduciaries and be prepared to produce such documentation in a DOL audit.