So, what does a plan sponsor definitely need to do in response to the new DOL fiduciary Regulations? A couple things, I think. First, it needs to ensure that the advisor providing investment recommendations is unequivocally a fiduciary. It makes no sense to compensate an advisor for providing investment advice if it need not act in participants’ best interests or assume legal responsibility for the investments it recommends. To ensure fiduciary identity, there should be a written agreement with the investment advisor where the advisor acknowledges that it is acting as a fiduciary within the meaning of ERISA and the advice it provides is based on the particular needs of the plan, its participants and beneficiaries. Second, the sponsor should look at how the advisor is compensated. If the advisor can influence the amount of its compensation or if it receives compensation from an entity other than the plan or its sponsor, both the sponsor and the advisor need to take steps necessary to ensure that the advisor arrangement does not constitute an ERISA prohibited transaction.

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