Passive enrollment may be automatic in many ways, but it still requires action.
The concept of passive enrollment appeals to many 401(k) plan sponsors. Surveys show an increasing number of sponsors adopting this approach also referred to as automatic or negative enrollment. Passive enrollment is essentially the opposite of conventional enrollment, where employees do not make any contributions to their company’s 401(k) plan until they submit specific instructions. Passive enrollment allows the employer to automatically enroll employees into its 401(k) at specified contribution and investment percentages immediately upon hire or upon meeting eligibility requirements. These specified (default) percentages remain in effect until the employee instructs otherwise. Passive enrollment has the potential to benefit both the employer and the employee. But there are communications requirements and pitfalls worth avoiding that plan sponsors should note before implementing.
With all employees contributing (at least upon their initial eligibility), the plan will likely produce more favorable nondiscrimination test results. Meanwhile, employees may come to appreciate that salary deferrals are an easy way to save for retirement, without having a significant effect on take-home pay.
However, there are potential downsides. Its automatic nature may confuse some employees as to their options for changing the default contribution and investment percentages. Others will question whether the plans default investment options take the proper amount of investment risk (perhaps too little for younger employees or too much for older ones). Furthermore, IRS Revenue Ruling 2000-8 requires that, upon hire, the plan administrator must advise all employees affected by passive enrollment of the following:
- the default salary deferral percentage automatically applicable to their pay (typically 3% or 4%);
- their ability to change the initial default contribution, and specifically how and when to do so; and
- their right and the timeframe to opt out of making contributions altogether (meaning a change to 0%).
The plan administrator must provide similar notifications annually to all employees who remain in a passive enrollment status i.e., those who never revised the defaults initially applied to their contributions.
The Revenue Ruling sets these requirements only for the contribution percentage aspect of these automatic contributions, not for their investment. But these notification requirements present an excellent opportunity for the plan sponsor to highlight the plans investment options. This is especially true since plans with a passive enrollment provision must provide at least one default investment fund usually either fixed income or low-risk equities until the employee specifies otherwise.
When exercising passive enrollment, the employer loses some of ERISA Section 404(c)s protection against participants legal action, because the Department of Labor views default investment elections as the employee not having exercised control over their account. Therefore, while reinforcing the long-term benefit of plan participation, salary deferrals, and (where applicable) the company match, the plan sponsor may want to include additional advice to employees about their passive enrollment process, such as:
- the default investment fund(s) that will apply to their contributions;
- the funds available in the plan and how to transfer from the default investment fund;
- procedures and timeframes for changing investments;
- the value of assessing their personal financial situation and risk tolerance, and how to do so; and
- how and where to obtain more information on the plans investment options.
In short, initial and ongoing employee communications about passive enrollment is far from a passive exercise for the plan sponsor and the plan administrator. However, passive enrollment can consistently yield higher participation levels if plan sponsors think carefully and innovatively about how to weave it into the plans overall design and administration.
