Skip to main content

The Perils of a Non-ERISA 403(b) Plan

Non-ERISA 403(b) plans seem to be dropping in popularity among non-profit organizations. Given regulatory guidelines that can be difficult to follow, many plan sponsors are finding it harder to maintain a fully compliant non-ERISA plan. If your non-profit still operates a non-ERISA plan, you may want to give some thought to changing over.



Historically, non-ERISA plans were a popular choice for many non-profit organizations, since they were subject to relatively little regulation. In general, most plan sponsors chose to maintain a plan outside of ERISA to avoid Form 5500 reporting and mandatory audits if the plan had more than 100 participants.



To qualify for non-ERISA status, plan sponsors had to have “limited involvement” in the plan. For instance, non-ERISA requirements precluded employers from being involved in certain basic plan functions, such as approval of plan-to-plan transfers, distribution processing, and addressing applicable joint and survivor annuity requirements.



That began to change in 2009 when the Internal Revenue Service implemented new regulations for 403(b) plans. The strategy was to align 403(b) regulations with those used with 401(k) plans. Unfortunately, the new guidelines had many gray areas that made compliance very challenging. For example, a non-ERISA plan that involved the plan sponsor in the disbursement of employee or hardship loans could be considered an ERISA plan.



Under the current regulatory environment, the distinction between a non-ERISA and an ERISA 403(b) is becoming more obscure. Inadvertent or unintentional involvement by the employer can make the plan subject to ERISA. That means that non-profits run the risk of being penalized by the Department of Labor for breach of ERISA requirements. Just having that risk out there creates an unclear, unsure environment.



Limited plan sponsor involvement can also hinder efforts to encourage greater employee plan participation. Every plan sponsor wants as many employees as possible to participate in their retirement plan. The more plan sponsors are involved, the more they can ensure their plans have the features that employees find attractive and will allow them the best opportunity to enhance their financial future.



Changing from a non-ERISA plan to an ERISA plan is not complicated. Generally, organizations need to:


  • commit to incorporating a 403(b) plan into the organization’s retirement plan objective; 

  • determine how the new plan correlates with the existing retirement program; 

  • develop a strategy to create a single 403(b) plan; 

  • develop a request for proposals to find the most suitable vendor to support your overall objective; and 

  • create a coordinated communication plan to bring the 403(b) into the overall organizational retirement objective. 


Consider creating a “combined” retirement benefit statement incorporating your former retirement plan and the new ERISA 403(b) savings plan. This will offer participants complete information about the prior plan as well as the one taking its place. Additionally, do not overlook significant compliance issues when moving from a non-ERISA plan to an ERISA plan:


  • adopt a new plan document (a plan document is already required under current regulations, even for a non-ERISA plan); 

  • understand and plan for an annual audit if the organization has more than 100 employees—this can be coordinated with audits for the current retirement plan; 

  • file an annual return (Form 5500)—this can also be coordinated with existing filings; and 

  • create a process for fiduciary management and oversight. 


The most important value of transitioning from a non-ERISA to an ERISA 403(b) plan is the ability to fully integrate it into an organizational commitment to successful participant outcomes. An advisor who specializes in this area can be of tremendous help in assisting non-profits in navigating the changeover smoothly and successfully.



All not-for-profit organizations should understand the compelling need to take an active role in helping their employees succeed in their retirement. Taking control and responsibility for their 403(b) plan makes for good business and happier employees.



If you have any questions about this article, or would like to begin talking to a dedicated retirement plan advisor, please get in touch by calling (855) 882-9177 or e-mail us at sbs@hanys.org.

Popular posts from this blog

Employee Benefits Offerings: What Perks Can You Add?

Employee benefits can play a crucial role in attracting and retaining top talent. Beyond compensation and bonuses, offering a variety of perks can significantly enhance employee satisfaction and productivity. But what should you include in your employee benefits offerings?   What are employee benefits?   Employee benefits encompass compensation, bonuses and various perks outside an employee's wage. By offering flexible employee benefits, you can improve employee productivity and loyalty while attracting and retaining talented candidates.   Personalized benefits examples   The type of benefits offered can vary by industry. We've compiled some of the most popular options to help you explore possible employee benefits strategies .  1. Social opportunities   Employee perks don't always have to be tied to a benefits package. Sometimes, the best way to engage your employees can be through social opportunities. Group activities can help im...

What is Risk Management? 4 Key Topics to Know

Understanding risk management in retirement programs  Managing a retirement program is complex, with multiple layers of risk. For organizations and their leadership, understanding and mitigating these risks is crucial to ensuring the long-term success and reliability of these programs.   It often leaves human resource professionals, employers and program administrators questioning, "What is risk management, and how can we excel at it?"  This blog post explores the various aspects of risk management in retirement program administration and provides actionable insights to help organizations better manage these risks.  The importance of risk management  Retirement programs are designed to benefit participants and beneficiaries, but they come with their own set of risks. These risks can be broadly categorized into four main topics:  Fees  Administration  Investments  Cybersecurity  Each of these topics requires meticulous attention and ...

Innovative employee retention strategies: 9 fresh ideas

Employee engagement and retention are pivotal in every sector, but they carry even more weight in the not-for-profit space, where resources are often limited. High turnover can be both costly and disruptive, impacting productivity and damaging morale. In an era of workforce evolution, to effectively retain their top talent, organizations must explore innovative employee retention strategies that go beyond conventional methods.  Engaged employees are distinguished by their higher productivity, motivation and loyalty, and they are more likely to stay with a company for the long term. Gallup recently updated its research article, The Benefits of Employee Engagement , finding that "low engagement teams typically endure turnover rates that are 18% to 43% higher than highly engaged teams."  In addition to turnover, disengaged employees negatively impact a company's financial health, with turnover costs averaging six to nine months of the departed employee's salary, accordin...