It’s been said that the DOL and courts take the position that “if it wasn’t documented, it didn’t happen.” In the case of ERISA, the best defense for retirement committees is always a strong offense which means taking a proactive approach to implementing a comprehensive fiduciary governance process. One of the cornerstone practices to demonstrate that the retirement committee has made prudent decisions as required by ERISA is to take official minutes at each meeting.
Meeting minutes have multiple benefits. They demonstrate that:
- Your committee has a structured format for documenting your decision-making process in a concise and well-organized way.
- Your committee has a method to review and audit historical decisions and outcomes over time, which is beneficial for existing and new committee members.
- Your committee possesses an official record that can support the facts surrounding your decision- making process in case your plan ever becomes involved in litigation.
While meeting minutes are a valuable tool to document your fiduciary process, it’s also important to draft minutes in a way that is beneficial and not detrimental.
- DO document the date of each meeting, who attended, and succinctly document the factors considered and key reasons for each decision.
- DO make it clear about exactly what factors or company policies guided the decision making.
- DO mention any reports and expert advice that were relied upon when making any decision about the plan.
- DO maintain formality as to actual votes taken.
- DO draft and finalize your minutes soon after the meeting, utilizing a consistent format.
- DO NOT focus on past problems or “fears."
- DO NOT leave issues “open” without any resolution.
- DO NOT use derisive or alarmist language.
- DO NOT commingle discussions about fiduciary matters with non-fiduciary or company matters.
- Consider hiring an ERISA attorney to attend the first committee meeting to explain the role of a fiduciary and your responsibilities.
- Establish and maintain an approval process for adopting meeting minutes.
- Determine how often and for how long you will meet (initial meetings may need to occur more frequently).
- Set meeting dates for the entire year.
- Create agendas for future meetings.
- Provide food!
- Communication is key — continue to communicate with committee members between meetings.
- Outline goals for participant education along with the strategy and communications that will be used to achieve them.