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Electronic Disclosure of Benefit Plan Information: Let Your Voice Be Heard

Employee Benefits Alert

The Department of Labor (DOL) has issued a Request for Information (RFI) soliciting public comments on the electronic disclosure of employee benefit plan information under the Employee Retirement Income Security Act of 1974 (ERISA). The RFI is in response to mounting public pressure on the DOL to update the electronic disclosure rules that, issued almost 10 years ago, now seem antiquated. The RFI provides 30 questions that seek information about whether and how the electronic disclosure rules should be revised, how participants access and use electronic media, and various technical issues. If you have ever felt constrained by the current electronic disclosure rules, we strongly encourage you to review the questions listed in the RFI and respond to at least some of those questions. We can assist you in preparing your responses, which must be received by the DOL no later than June 6, 2011.

As background, the DOL has always been apprehensive about issuing a “safe harbor” rule that would place electronic disclosure on par with paper disclosure. The DOL was concerned that electronic disclosure may not be appropriate for all participants or for all required disclosure obligations under ERISA. The agency was also concerned that some workers may not have reasonable access to the Internet and email and that even if they did, there might be some who preferred paper copies of information. As a result, in 2002, when the DOL eventually issued a safe harbor for electronic disclosures, its relief was limited in scope.

Now, through the recent RFI, the DOL is exploring whether and how to expand or modify the current standards for electronic disclosure of plan information, taking into account current technology, best practices, and the need to protect plan participants. To meet this end, the DOL is asking plan participants, plan sponsors, service providers, and financial institutions to provide responses to questions relating to the access and usage of electronic media and the current safe harbor rule for electronic disclosures. There is no obligation to respond to all, or any particular, questions.

Some of the questions the DOL asks in the RFI are open-ended (i.e., Should the current rules be revised, and why or why not?) and some are very specific (i.e., What percentage of participants have access to the Internet at work or home? What percentage use the Internet to access private information such as personal bank accounts?). Other questions ask whether there should be different rules for different types of plans (e.g., pension versus health and welfare plans) or for different types of disclosures (e.g., pension benefit statements versus COBRA notices).

Over the years, clients have conveyed their frustrations with the current safe harbor rules on electronic disclosure, stating while that they have the technology to efficiently and adequately deliver electronic information to participants, the safe harbor limitations effectively prevented them from doing so. The RFI presents an excellent opportunity for clients to convey their long-standing concerns. The RFI is also a perfect opportunity to educate the DOL on new technologies and creative methods for delivering information to participants.

Although we anticipate a large volume of responses to the RFI from a variety of constituencies, you should not assume that one or more of these responses will articulate your particular message. If you wish to be heard, now is the time.

If you are interested in responding to the RFI or learning more about it, please let us know. Comments may be submitted to the DOL under your company’s name, or we can submit comments - on a no-names basis - on your behalf. Remember, all comments must be received by the DOL by June 6, 2011. 

For more information, please contact:

Fred Oliphant,, 202-626-5834

Gary Quintiere,, 202-626-1491

Elizabeth Drake*

Garrett Fenton*

Eva McComas*

Anthony Provenzano*

*Former Miller & Chevalier attorney

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

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