There is a great article today in the Wall Street Journal on the adoption of 401(k) plans by smaller companies, noting that this phenomenon is driven by both legislative and labor market developments, and crediting these changes with pushing employee participation in 401(k) plans to half of the labor force. All good news, but there is one point about this development that is worth mentioning and probably should have been mentioned in the article, given its focus on the adoption of such plans by small businesses.
In my practice, I have often seen poor administration of 401(k) plans run by smaller employers, not because of anything nefarious on anyone’s part or even anything at all on the part of the employer. Instead, it arises because of the nature of many of the administrators available to small plans and employers. Some are good, some aren’t, but generally speaking, they don’t bring the same level of resources to bear on administering plans that the large companies that administer the plans of large employers bring to the table. For smaller employers either thinking of offering or already offering a 401(k) plan, this is a point to remember.
If you are a small employer, while the marketplace will dictate which vendors are available to you, there are steps you can take to ameliorate the risks and concerns this raises. I will give you one of those right now: pay close attention to the contract you enter into with the administrator and, if at all possible, have an ERISA lawyer review it before you execute it. There are many key points and issues in offering a 401(k) plan that, if problems arise, will be affected by the terms of that contract, and it is a lot better if the employer offering such a plan knows those terms at the outset than only after a problem arises. It is even better if the employer and counsel have a chance to negotiate with the administrator over those terms before the agreement is signed. I cannot count how many times employers have brought such contracts to me only after a dispute has arisen – and at that point, the cure is a lot worse than prevention, by means of careful contracting, would have been.