Ask the Experts April 1, 2025

Can Plan Sponsors Self-Correct Late Elective Deferral Remittances?

Experts from Groom Law Group and CAPTRUST answer questions concerning retirement plan administration and regulations.

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Q: I heard that we can now self-correct late retirement plan elective deferral remittances with the Department of Labor. Is that true?

Kimberly Boberg, Kelly Geloneck, Emily Gerard and David Levine, with Groom Law Group, and Michael A. Webb, senior financial adviser at CAPTRUST, answer:

A: Yes, but there are strict requirements that you should consider. On January 15, 2025, the Department of Labor released its final rule regarding changes to its Voluntary Fiduciary Correction Program. The most significant update to the VFCP is the addition of a self-correction component allowing plans to remedy certain failures without filing a formal VFCP application. The SCC includes correction of delinquent participant contributions (and loan repayments), but there are several caveats.

First, unlike the Internal Revenue Service’s self-correction program (which does not involve any interaction with the IRS), the new self-correction program requires a notice to be filed with the DOL. In addition, to use self-correction for delinquent participant contributions or loan repayments, the corrective earnings cannot exceed $1,000, and correction must have occurred within 180 days of the payroll date. This will render many instances of late remittances ineligible for self-correction, since corrective earnings can often exceed $1,000, and many instances of late remittance are discovered upon review by the plan’s auditor, which occurs in most instances well after 180 days have elapsed.

The SCC also contains specific requirements for the calculation methodology used for the correction, requires that that the self-corrector compile and provide the plan administrator with a SCC Retention Record Checklist, and requires that a plan fiduciary with knowledge of the correction sign a penalty of perjury statement.  Thus, this method of self-correction may prove to be less attractive to plan sponsors than the IRS’ self-correction methods.

NOTE: This feature is to provide general information only, does not constitute legal advice and cannot be used or substituted for legal or tax advice.

Do YOU have a question for the Experts? If so, we would love to hear from you! Simply forward your question to Amy.Resnick@issmarketintelligence.com with Subject: Ask the Experts, and the Experts will do their best to answer your question in a future column.

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Compliance March 31, 2025

ESOPs Face Scrutiny Over Cash Holdings in Recent Lawsuits

Plan fiduciaries have been accused of failing to prudently invest cash held in employee stock ownership plan trusts in recent cases.

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In the last year, at least four companies have faced class action lawsuits over their management of cash holdings in employee stock ownership plans, potentially signaling a new litigation trend.

While investments in company stock have been commonly scrutinized, the focus on cash holdings may be a “significant and novel shift,” according to attorneys Caleb Barron and David Joffe at Bradley Law Firm P.C. 

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The same law firm, Engstrom Lee LLC, filed ESOP cash investment-related complaints against Aerotech Inc., Aluminum Precision Products Inc., Pride Mobility Products Corp. and Wilson Electric Services Corp.

In Schultz et al. v. Aerotech Inc. et al., filed in the U.S. District Court for the Western District of Pennsylvania in April 2024, former and current participants of Aerotech’s ESOP argued that the company failed to invest the non-employer stock assets of the ESOP prudently and for the exclusive benefit of ESOP participants.

According to the lawsuit, the ESOP has two types of assets: Aerotech stock and other investments. The other investments are known as the other investments account.

The company’s Employee Stock Ownership Plan and Trust Committee has kept the OIA invested exclusively in cash equivalents, namely money market accounts and short-term certificates of deposit. The plaintiffs argued that the committee’s investment of the OIA s “unusual and imprudent.”

“Cash equivalents are appropriate only if the investor has a short-term investment objective, needs to preserve their principal balance, and cannot tolerate market risk,” the lawsuit stated. “These investments are not designed or expected to provide competitive long-term growth needed by retirement plan participants.”

The plaintiffs argued that monitoring recent market data would have shown the committee that cash equivalents “earn significantly less over the long term, even when valued during declines in other asset classes.”

Aerotech has kept the OIA invested exclusively in cash equivalents since at least 2009, according to the complaint.

The complaint also suggested that one strategy to avoid investing exclusively in cash equivalents is to allow participants to direct their “other investments” balances to pooled funds that offer stocks and other asset classes. This could be accomplished by offering pooled funds within the ESOP or by allowing participants to move balances to the company’s 401(k) plan.

Attorneys at Bradley Law Firm P.C., who are not involved in any of the ESOP cases, argued in a recent post that the option of moving individuals’ balances to the 401(k) plan is most useful when the accounts of terminated participants are segregated and immediate distributions are not permitted.

“While there are complex pros and cons to this approach, reducing the fiduciary obligations on the ESOP fiduciaries is a clear benefit,” the attorneys wrote.

In a motion to dismiss the case, Aerotech argued that the cash-heavy approach was necessary to meet future repurchase obligations. However, the plaintiffs claimed that the company could have pursued higher-yield investments while maintaining adequate liquidity.

The lawsuit survived a motion to dismiss in February and will proceed to discovery. The court pointed to the “vast disparity” between Aerotech’s cash-heavy approach and the practice of similar ESOPs, arguing that the Aerotech ESOP held nearly 200 times as much cash as comparator ESOPs. The court stated that the vast disparity “supports a reasonable inference of a lack of prudence.” 

Aerotech did not immediately respond to a request for comment.

Many of the other cases are ongoing. The suit against Pride Mobility Products reached a settlement in February.

In January, the Department of Labor issued a proposed regulation aimed at clarifying the term “adequate consideration” regarding the valuation of employer stock in ESOP transactions, as required under the Employee Retirement Income Security Act. The proposal seeks to strengthen protections for participants, while providing fiduciaries with guidance on determining the fair market value of employer stock in these transactions.

Hillary Abell, the head of the DOL’s Division of Employee Ownership under the Employee Benefits Security Administration, was reinstated to her position in March after initially being terminated in February as part of President Donald Trump’s efforts to downsize the federal government.

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