“Were you saying that the individual in question was NOT a fiduciary? It sounded to me as if the individual could certainly be a fiduciary, even though that was clearly not his/her employer’s intent as was stated.” 

Michael A. Webb, vice president, Cammack Retirement Group, answers:

The Experts can assure you that it was NOT the intent of the response to make any sort of fiduciary determination with respect to the individual in question. It was merely a discussion of how the new Department of Labor (DOL) proposed rule addressing the definition of fiduciary COULD provide an exception so that the employee in question might not be a fiduciary.

Currently, most plan sponsors probably intend that staff that routinely assist the fiduciary committee and are not making fiduciary decisions themselves not be plan fiduciaries. Whether they are or not is a factual determination even under current regulations. With the broadening of the definition of fiduciary under the proposed regulation, absent the exemption, more of them might be. However, the proposed rule is a long way from being finalized, so it is possible the definition of fiduciary, as well as the exemption in question, could differ significantly from  what has been proposed once the rule is finalized.

Regardless, whether the individual who posed the question is a fiduciary under the Employee Retirement Income Security Act (ERISA), or will be once the proposed fiduciary rule is finalized, is a matter for the plan sponsor’s benefit’s counsel who is well-versed in such issues to determine based on the specific facts involved.  It is best practice for all ERISA plan sponsors to regularly work with counsel with specific expertise in this area to identify all plan fiduciaries; a task, which may or may not be made less complex once the long-awaited DOL proposed fiduciary definition is finalized.

Thanks you for providing the Experts with an opportunity to clarify our original response!