DOL Is Stepping Up ‘Missing Participant’ Retirement Plan Audits

Plan sponsors should document efforts to find former employees owed benefits

Stephen Miller, CEBS By Stephen Miller, CEBS October 12, 2017

updated on Dec. 22, 2017

The U.S. Department of Labor (DOL) is ramping up its audits of retirement plans with "missing" participants. This is putting pressure on plan administrators to locate former employees—or their beneficiaries—so that they can receive the benefits they're owed.

This is something "completely new" that started in the DOL's Philadelphia office as a pilot project last year and is now going national, said Norma Sharara, a principal in Mercer's employment practices risk management group in Washington, D.C.

To help reunite participants with their benefits, the Philadelphia DOL office began looking at the Forms 5500 of defined benefit plans to identify employers with a high number of terminated vested participants who were not receiving payments and who had not received a lump-sum payout. When officials contacted plan sponsors and asked for names and addresses of these participants, "the sponsors said they were missing," Sharara said. But, she continued, when the Philadelphia DOL sent a certified letter to the participants' last-known addresses, "a lot of participants responded" and said they "hadn't known money was waiting for them in a pension plan somewhere."

From October 2016 to August 2017, the Philadelphia DOL recovered more than $165 million in benefits that should have been paid to participants, Sharara noted.

[SHRM members-only toolkit: Designing and Administering Defined Benefit Retirement Plans]

IRS Issues Guidance on Missing Plan Participants

Unlike the DOL, the IRS's Oct. 19, 2017, administrative enforcement guidance does not require that a retirement plan's administrator identify and contact a missing participant or designated beneficiary. However, to avoid a challenge against the plan by IRS examiners for failure to make a required distribution to a participant or beneficiary, the plan must be able to show it has taken the following three steps:

  • Searched plan and related plan, sponsor, and publicly available records or directories for alternative contact information.
  • Used any of the search methods below: 

o A commercial locator service; 

o A credit reporting agency; or

o A proprietary internet search tool for locating individuals.

  • Attempted contact via United States Postal Service (USPS) certified mail to the last known mailing address and through appropriate means for any address or contact information (including e-mail addresses and telephone numbers). 

If a plan has not completed the steps above, examiners may challenge a qualified plan for violation of the required minimum distribution (RMD) standards.

Unlike the IRS, however, "the DOL does not require that these search methods be used in all cases," according to an online post from law firm Baker Botts LLP. "It is not known whether the DOL will give any deference to the IRS's position on what constitutes 'reasonable efforts' to locate missing participants."

Breach of ERISA Duty

Following the success of the Philadelphia pilot program, the initiative is now going national. DOL auditors will monitor plan sponsors' failures to locate and contact missing participants and will treat the failure to do so as a breach of fiduciary duty under the Employee Retirement Income Security Act (ERISA), which can trigger substantial penalties.

"The DOL thinks that fiduciaries can't do what they've always done, which is to pretty much wait for participants to file a claim," Sharara said. "Instead, you have an affirmative duty to proactively contact participants in advance of benefit start dates."

"The DOL is saying that plan fiduciaries could be personally liable to pay participants their missed benefits," she added.

"It's not top of mind with most plan participants to alert their former employers about address changes, especially if they are still working and not planning to retire for several years," noted Scott Hittner, partner and chief actuary at plan advisory firm October Three Consulting in Greenwood Village, Colo. Nevertheless, "it is critical for plan sponsors to have accurate information so that they can pay their participants on time the benefits they're owed," he said.

Prohibited Transaction Risk Sparks Concern

An Oct. 2, 2017 letter from the American Benefits Counsel, an employers group, to the DOL raised concerns over the following aggressive legal positions taken by DOL investigators with respect to missing participants:

  • Failure to locate a missing participant may result in a breach of fiduciary by the plan administrator duty even if the plan's procedures have been followed.
  • The forfeiture of retirement plan benefits owed to unresponsive or missing participants may result in a prohibited transaction, even if the plan provides for reinstatement of the benefit following a participant's subsequent claim for benefits.
  • Plan administrators should perform an annual search for missing participants, using a different search method each year and may be obligated to use methods such as contacting current and former employees who worked at the same time as the missing participant to assist in this process.
  • Plan administrators should keep searching for the same missing participant indefinitely, even though performing unlimited searches for the same participant is not an efficient use of plan resources.

"Perhaps the most troubling of these positions is the second one—that forfeiture of unclaimed retirement benefits may be a prohibited transaction," according to a client alert from Dallas-based law firm Wilkins Finston Freidman. "Because correction would require restoring the forfeited funds, adjusting such amounts for earnings in the case of a defined contribution plan, disgorging any profits earned by the plan sponsor by reason of the forfeiture, and paying a 15 percent excise tax to the Internal Revenue Service."

Notably, even if the plan document provides for the forfeiture and restoration and received a favorable determination letter from the IRS, "this does not insulate the plan sponsor from potential DOL liability because prohibited transaction issues are within the purview of the DOL," the law firm's alert states.

Getting Ready

Plan sponsors should get ready for stricter scrutiny of their efforts to contact missing participants, Sharara advised.

At the Aug. 24 meeting of the ERISA Advisory Council in Washington, D.C., Timothy Hauser, acting director of the DOL's Employee Benefits Security Administration, said there will soon be new guidance regarding standards that plan sponsors should follow. He listed four steps plan sponsors should take until the guidance is released.

Plan sponsors should:

  • Send missing participants a certified letter using their last known address. Certified mail "suggests this isn't just another boring mandatory notice to be thrown in the trash unopened," Sharara said.
  • Keep good records on efforts to reach terminated vested participants. "Make a deliberate effort to update and keep current records," Sharara recommended. During mergers and acquisitions, pass those records to the successor firm.
  • Contact co-workers of terminated vested participants. Ask "do you know how to get in touch with so-and-so?"
  • Try contacting missing participants through their phone numbers. People may keep their cellphone numbers when they change addresses, Sharara pointed out.

If all else fails, a commercial locator service may be able to find missing participants. Plan sponsors, however, have a fiduciary duty to monitor these efforts. "In some cases when a commercial locator service said it couldn't locate a person, the Labor Department found [the missing participants] within five minutes doing a Google search. Your duty as a plan sponsor is to monitor your service providers" or risk being held liable for breach of fiduciary duty, Sharara said.

Plan sponsors also "can head off wild goose chases and potential DOL audits," Sharara said, by following all filing rules for IRS Form 8955-SSA, Annual Registration Statement Identifying Separated Participants with Deferred Vested Benefits.

The initial filing is due no later than the pension plan's Form 5500 due date for the plan year following the plan year in which the participant ended employment (if benefits haven't started by then). Subsequent filings are required if errors are discovered in information previously reported or if the participant's benefits are transferred to a successor plan sponsored by a different employer, for instance.

PBGC Expands Missing Participants Program to Terminated 401(k) and Other Plans

Beginning in January 2018, terminating defined contribution plans will have the option of transferring missing participants' benefits to the Pension Benefit Guaranty Corp. (PBGC) instead of establishing an IRA at a financial institution, the PBGC announced. Participant accounts will not be diminished by ongoing maintenance fees or distribution charges, and PBGC will pay out benefits with interest when participants are found.

The program provides a central repository for retirement benefits from closed plans that individuals are free to search. Use of this program, however, is voluntary for plan sponsors with terminating plans.

The expanded program is only open to plans that terminate on or after Jan. 1, 2018.

Related SHRM Article:

Keep Track of 401(k) Participants So They Don’t Go Missing, SHRM Online Benefits, April 2018

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.



Hire the best HR talent or advance your own career.

Are you a department of one?

Expand your toolbox with the tools and techniques needed to fix your organization’s unique needs.

Expand your toolbox with the tools and techniques needed to fix your organization’s unique needs.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.