New Form 5500 Intranet Posting Requirements For Defined Benefit Pension Plans Now In Effect

Employers that sponsor defined benefit pension plans should be aware of a new intranet posting requirement. Effective for the 2008 Form 5500, which many plan administrators have recently filed, an employer that sponsors a defined benefit pension plan and maintains an intranet Web site for employee communications is required to post the actuarial information included in Form 5500 on the intranet. The posting requirement does not apply to employers who do not maintain an intranet Web site for employee communications, nor does it obligate them to create such a Web site.

The Department of Labor (DOL) has not yet issued formal guidance on this posting requirement. In the absence of guidance, employers will need to determine how to comply with the posting requirement, including the answers to common questions:

What must be posted? The 2008 Form 5500 instructions require the posting of "actuarial information" on the intranet Web site. It does not appear that the entire Form 5500 and all schedules are required to be posted. Rather, it should be sufficient to post the Form 5500 and the Schedule SB (or MB for multi-employer plans). It is also not clear whether attachments to the Schedule SB or MB must be posted. However, it appears that it may be acceptable to post a PDF copy of the Form 5500 and Schedule SB without attachments.

When must the Form 5500 be posted? The DOL has not issued any official guidance on the posting deadline. Informal DOL comments indicate that it is best to post the Form 5500 and Schedule SB contemporaneously with the filing. However, the DOL is itself required to begin posting Form 5500 filings in a new "public disclosure" Web site starting January 1, 2010. The DOL public disclosure Web site posting deadline is 90 days from the date the Form 5500 is filed. The DOL may ultimately provide for a reasonable period for employers to prepare and publish the intranet posting, and may apply the 90-day time frame to required intranet postings as well. However, until DOL guidance is issued, we recommend that employers take steps to make the posting as soon as possible. Many plan sponsors will likely retain the current Form 5500 posting until the next Form 5500 is filed, and replace it with updated information at that time.

Must notice of the posting be provided to employees? The DOL indicated that it is desirable for employers to provide notice to employees about the posting. However, the Employee Retirement Income Security Act of 1974 (ERISA) contains no formal notice requirement, and it is likely that many employers will not provide such a notice at this time.

The DOL's regulatory agenda for 2010 does not include regulations on this posting requirement at this time. However, employers must comply in the interim until regulations are issued.