I am a PLAN SPONSOR HR TEAM MEMBER and I design the materials for new employees about the plan and investment options. Am I an investment advice fiduciary?

No, if that’s all you do for the plan, you are not a fiduciary.

The DOL states very specifically that education will not be considered a “recommendation” no matter who the educator is (plan sponsor, fiduciary, or service provider), no matter the frequency of the delivery, no matter what form the provision of information takes (via call center, video, computer software, in writing, orally, to an individual or to a large group), provided that the educational information is not combined with recommendations as to investment in or management of particular investment property.  The DOL lists common education communications and provides the following required parameters:

Plan information:  Descriptions of the terms or operation of a plan, the benefits of IRA or plan participation, the impact of increasing contributions, the impact of preretirement withdrawals, retirement income needs, varying forms of distributions and their characteristics, fee and expense information, investment objectives and philosophies, risk and return characteristics, historical return information or related prospectuses – so long as there is no suggestion that any individual investment alternative or benefit distribution option is more appropriate than another.

General financial, investment and retirement information:  Descriptions of general financial concepts including rates of returns, fees, inflation, estimating future retirement income needs, determining investment time horizons, risk tolerance, etc. – so long as there is no reference to a specific plan or IRA investment alternative or distribution options available to the plan participants or IRA owner or to specific investment services outside of the plan or IRA.

Asset allocation models:  So long as the models are: (1) based on generally accepted investment theories that take into account historic returns of different asset classes over specified periods; (2) accompanied by all material facts and assumptions (retirement ages, life expectancies, income levels, rates of return, etc.); (3) accompanied by a statement that any plan participant, beneficiary or IRA owner applying the model to themselves must take into account their own assets, income, etc.; (4) exclusive of any specific investment product or alternative available under the plan or IRA, unless it is the designated investment alternative under the plan and subject to oversight by a plan fiduciary independent of the persons who developed or markets the investment alternative and model and meets certain other requirements.

Interactive investment materials: Questionnaires, worksheets, software and similar materials that provide recipients such as a plan fiduciary, plan participant or fiduciary or IRA owner the opportunity to estimate retirement income needs and assess the impact of the different asset allocations or to evaluate distribution options would not be “recommendations” if certain requirements are met, including that:  (1) the materials are based on generally accepted investment theories that take into account historic returns of different asset classes over specified periods; (2) there is no objective correlation between the income stream generated by the materials and the information supplied by the recipient; (3) there is no objective correlation between the asset allocations generated by the materials and the data supplied by the recipient; (4) all material facts and assumptions (retirement ages, life expectancies, income levels, rates of return, etc. are clearly set forth; (5) the materials take into account other assets such as income and investments, Social Security benefits, equity in a home, etc., or are accompanied by a statement that any recipient should consider their own such assets; and (6) the materials do not include any specific investment product or alternative available under the plan or IRS, unless it is the designated investment alternative under the plan and subject to oversight by a plan fiduciary independent of the persons who developed or markets the investment alternative and model and meets certain other requirements.