Named Fiduciary: ERISA Duties, Liability, and Delegation

Under ERISA, a named fiduciary is the person or entity identified in an employee benefit plan’s written instrument as having authority to control and manage the plan’s operation and administration. Every ERISA-covered plan must have at least one, and whoever holds the role carries personal liability for the plan’s investment decisions, fees, and compliance with federal standards. A fiduciary who falls short can be required to restore every dollar the plan lost.

How the Role Is Created

ERISA requires that every employee benefit plan be established through a written instrument, and that instrument must provide for one or more named fiduciaries who have authority to control and manage the plan’s operation and administration.¹ The plan can identify a named fiduciary in two ways: by naming the person or entity directly in the plan text, or by describing a procedure through which an employer, employee organization, or both together select the fiduciary.

Common choices include the sponsoring employer itself, its board of directors, or a specially created administrative committee. Individual officers or employees can also serve. The plan document must describe any procedures for allocating fiduciary responsibilities among multiple named fiduciaries and for allowing named fiduciaries to delegate tasks to others.¹ Vague or missing language on these points invites administrative confusion and scrutiny from the Department of Labor’s Employee Benefits Security Administration.

One detail catches people off guard. ERISA does not generally require a named fiduciary to sign an acceptance for the appointment to take effect. Fiduciary status attaches based on the functions a person performs for the plan. If you’re named in the plan document and exercising control, you’re on the hook whether you signed anything or not.

Named Fiduciaries vs. Functional Fiduciaries

ERISA creates two paths to fiduciary status. A named fiduciary is the person or entity formally identified in the plan document, or selected through the plan’s designated procedure. A functional fiduciary is anyone who, regardless of title, exercises discretionary authority or control over plan management, exercises authority over plan assets, renders investment advice for a fee, or has discretionary responsibility over plan administration.²

A corporate officer who selects the plan’s investment lineup is a functional fiduciary even if their name appears nowhere in the plan document. Being a CEO or board member alone does not make someone a fiduciary; making discretionary decisions about the plan does. Named fiduciaries carry the broadest responsibilities because the statute assigns them control over the plan’s overall operation. Functional fiduciaries face the same duty-of-care standards for whatever slice of authority they actually exercise. Both are subject to personal liability within the scope of their respective roles.

The Four Core Duties

ERISA Section 404 imposes four duties on every fiduciary, and courts take them seriously.³

Loyalty. All decisions must be made solely in the interest of participants and beneficiaries, and exclusively for providing benefits or defraying reasonable plan expenses. Considering the employer’s interests when making plan decisions crosses the line.
Prudence. A fiduciary must act with the care, skill, prudence, and diligence that a knowledgeable person in a similar role would use. The standard is not perfection; it is the process a well-informed decision-maker would follow.
Diversification. Plan investments must be diversified to minimize the risk of large losses, unless circumstances make it clearly prudent not to diversify.
Plan document compliance. Fiduciaries must follow the terms of the plan’s governing documents to the extent those terms are consistent with ERISA.

Prudence is where most litigation originates. In Tibble v. Edison International, the Supreme Court held that prudence is not a one-time obligation at the moment an investment is selected. Fiduciaries have a continuing duty to monitor plan investments and remove imprudent ones, and a lawsuit is timely as long as the alleged failure to monitor occurred within the limitations period.⁴ Keeping a poorly performing or overpriced fund in the lineup for years can itself be a breach, separate from whatever happened when the fund was first chosen.

Ongoing Administrative Duties

Beyond investment oversight, named fiduciaries carry administrative obligations that keep the plan in compliance with federal reporting and disclosure rules.

Annual Reporting

Every ERISA-covered plan must file a Form 5500 annually, which discloses the plan’s financial condition, investments, and operations. It is the primary tool the Department of Labor and IRS use to monitor plan compliance.⁵ Late or incomplete filings can trigger penalties from both agencies.

Participant Disclosures

The plan administrator must provide each participant with a Summary Plan Description within 90 days of the date they become covered. When the plan is changed, a Summary of Material Modifications must go to participants within 210 days after the end of the plan year in which the change was adopted. If the change reduces covered services or benefits under a group health plan, that deadline shrinks to 60 days after adoption.⁶

Fee Monitoring

Named fiduciaries are responsible for evaluating and monitoring the fees charged by every service provider to the plan, including recordkeepers, investment managers, and consultants. The obligation is ongoing. After the initial selection, fiduciaries must regularly review fees and investment performance to confirm both remain reasonable in light of the services provided.⁷ Failure to benchmark fees against comparable providers is one of the most common grounds for excessive-fee lawsuits, and courts have not been sympathetic to fiduciaries who rubber-stamped existing arrangements year after year.

Settlor vs. Fiduciary Expenses

Not every expense related to a plan can be paid from plan assets. The Department of Labor draws a line between settlor functions and fiduciary functions. Settlor functions involve the formation, design, and termination of plans, and these are business decisions the employer must pay for out of its own pocket. Examples include plan design studies and cost projections evaluating the financial impact of a plan change on the sponsor. Fiduciary functions involve implementing those decisions once made, and implementation expenses can be paid from plan assets if they are reasonable. Examples include calculating participant benefits, communicating plan information, and performing nondiscrimination testing.⁸ Charging settlor expenses to the plan is itself a fiduciary breach.

Record Retention

ERISA Section 107 requires that anyone subject to the statute’s reporting obligations retain copies of filed reports and the underlying records for at least six years after the filing date.⁹ Because the statute of limitations for fiduciary breach claims can also extend to six years, retaining records beyond the statutory minimum is a sensible precaution.

Prohibited Transactions

ERISA flatly bans certain transactions between the plan and “parties in interest,” even if the terms seem fair. A fiduciary who knows or should know that a transaction falls into a prohibited category cannot allow the plan to go forward with it. The banned categories include sales or leases of property between the plan and a party in interest, loans or extensions of credit, and transfers of plan assets for the benefit of a party in interest.¹⁰

Fiduciaries face an additional set of self-dealing restrictions. A fiduciary cannot use plan assets for their own benefit, act on behalf of someone whose interests conflict with the plan’s, or receive personal compensation from any party in connection with a plan transaction.¹⁰ These rules apply even when the fiduciary believes the transaction is beneficial to the plan.

Congress recognized that enforcing these rules rigidly would prevent some legitimate arrangements, so ERISA includes statutory exemptions. Plans can make loans to participants if the loans are available on a reasonably equivalent basis and carry a reasonable interest rate. Plans can also contract with parties in interest for necessary services such as legal work, accounting, or recordkeeping, provided the compensation is reasonable. Other exemptions cover bank deposits, insurance contracts, and certain pooled investment funds.¹¹ The Secretary of Labor can also grant individual or class exemptions for transactions that don’t fit the statutory carve-outs, as long as the exemption is in the interest of participants and protective of their rights.

Delegating and Allocating Responsibilities

Running a benefit plan is too complex for one person to handle everything. The plan document can establish procedures for two types of responsibility-sharing: allocation, where duties are divided among multiple named fiduciaries, and delegation, where a named fiduciary assigns certain tasks to someone who is not a named fiduciary.¹² Both arrangements must be expressly authorized by the plan’s governing instrument.

When a plan properly allocates or delegates a responsibility, the named fiduciary who hands off the task is not liable for the other person’s acts or omissions in carrying it out. There are exceptions. The named fiduciary remains liable if the allocation or delegation itself was imprudent, if the procedure for delegation was improperly established, or if the named fiduciary continued the arrangement despite red flags.¹² Delegation is not a way to wash your hands of the outcome. It shifts day-to-day execution while preserving the duty to oversee.

One particularly powerful form of delegation involves appointing an investment manager under ERISA’s definition. An investment manager must be a registered investment adviser, a bank, or a qualified insurance company, and must acknowledge in writing that they are a fiduciary.² When a qualified investment manager is properly appointed, no trustee is liable for that manager’s investment decisions.¹² The named fiduciary still has to monitor the manager’s performance and fees over time, but the actual investment choices become the manager’s legal responsibility.

Personal Liability and Enforcement

A fiduciary who breaches any ERISA duty is personally liable to restore the plan for all resulting losses. The fiduciary must also return to the plan any profits made through improper use of plan assets. A court can impose any equitable or remedial relief it considers appropriate, including removing the fiduciary from their position.¹³ The “make the plan whole” standard means a breaching fiduciary doesn’t just lose whatever they gained. They owe whatever the plan lost, which can be a far larger number.

Co-Fiduciary Liability

ERISA holds fiduciaries responsible for each other’s breaches in three situations: when a fiduciary knowingly participates in or conceals another fiduciary’s breach, when a fiduciary’s own failure to comply with the prudence standard enables another fiduciary to commit a breach, or when a fiduciary has knowledge of a breach and fails to make reasonable efforts to fix it.¹² The third category surprises people most. If a committee member learns that another fiduciary is engaging in a prohibited transaction and does nothing, that silence alone creates personal liability.

Civil Penalties and Who Can Sue

Beyond restoring the plan, the Department of Labor can assess a civil penalty equal to 20% of the amount recovered from a fiduciary through a settlement or court order in a DOL enforcement action. Participants, beneficiaries, other fiduciaries, and the Secretary of Labor can all bring lawsuits to enforce fiduciary obligations. The Secretary can also seek injunctions to stop ongoing violations and obtain broad equitable relief.¹⁴

Statute of Limitations

A lawsuit for fiduciary breach must be filed before the earlier of two deadlines: six years after the last act that constituted part of the breach, or three years after the plaintiff first had actual knowledge of the breach. For an omission, the six-year clock runs from the latest date on which the fiduciary could have corrected it.¹⁵ If the fiduciary committed fraud or actively concealed the breach, the six-year clock starts from the date of discovery. The Tibble decision reinforced that ongoing failures to monitor investments can generate new breach dates, effectively restarting the limitations period each time a fiduciary fails to act when a prudent person would have.⁴

Bonding and Fiduciary Insurance

ERISA requires every person who handles plan funds or other property to be covered by a fidelity bond. The bond must equal at least 10% of the funds the person handles, with an absolute minimum of $1,000 and a standard maximum of $500,000. Plans that hold employer securities face a higher cap of $1,000,000. The bond amount is set at the beginning of each plan fiscal year.¹⁶

The fidelity bond protects the plan, not the fiduciary. It covers losses from theft, embezzlement, forgery, and similar fraudulent acts.¹⁶

Fiduciary liability insurance is a separate, optional product that protects the fiduciary personally against claims of breach of duty, such as excessive-fee lawsuits. It covers attorney fees, settlement costs, and court-awarded damages. Unlike the mandatory fidelity bond, fiduciary liability insurance can be purchased from any provider and can include deductibles. Without it, a fiduciary found in breach faces personal exposure that can reach into their own savings and property.

Cybersecurity Obligations

The Department of Labor has made clear that a named fiduciary’s duty of prudence extends to protecting participant data and plan assets from cyber threats. EBSA has published guidance calling on fiduciaries and their service providers to maintain formal cybersecurity programs that include annual risk assessments, independent third-party audits, multi-factor authentication, encryption of sensitive data both at rest and in transit, and incident response plans tested at least annually.¹⁷

When hiring recordkeepers and other service providers, fiduciaries should ask about the provider’s security standards, audit results, and track record with past breaches. The DOL recommends contractual provisions that require annual third-party security audits, prompt breach notification, and compliance with all applicable privacy laws, and it advises against signing contracts that limit a provider’s responsibility for security failures.¹⁸ A data breach at a plan’s recordkeeper that results in participant losses could trigger fiduciary liability if the named fiduciary failed to vet the provider’s security practices or ignored known vulnerabilities.

1
Office of the Law Revision Counsel. 29 USC 1102 – Establishment of Plan
2
Office of the Law Revision Counsel. 29 USC 1002 – Definitions
3
Office of the Law Revision Counsel. 29 USC 1104 – Fiduciary Duties
4
Justia. Tibble v Edison International, 575 US 523 (2015)
5
U.S. Department of Labor. 2025 Instructions for Form 5500
6
Office of the Law Revision Counsel. 29 USC 1024 – Filing With Secretary and Furnishing Information to Participants and Beneficiaries
7
U.S. Department of Labor. Understanding Retirement Plan Fees and Expenses
8
U.S. Department of Labor. Guidance on Settlor v Plan Expenses
9
U.S. Department of Labor. Recordkeeping in the Electronic Age
10
Office of the Law Revision Counsel. 29 USC 1106 – Prohibited Transactions
11
Office of the Law Revision Counsel. 29 USC 1108 – Exemptions From Prohibited Transactions
12
Office of the Law Revision Counsel. 29 USC 1105 – Liability for Breach of Co-Fiduciary
13
Office of the Law Revision Counsel. 29 USC 1109 – Liability for Breach of Fiduciary Duty
14
Office of the Law Revision Counsel. 29 USC 1132 – Civil Enforcement
15
Office of the Law Revision Counsel. 29 USC 1113 – Limitation of Actions
16
Office of the Law Revision Counsel. 29 USC 1112 – Bonding
17
U.S. Department of Labor. Cybersecurity Program Best Practices
18
U.S. Department of Labor. Tips for Hiring a Service Provider With Strong Cybersecurity Practices