Based on the assistance required to be given to certain foreign-speaking participants in the SPD regs, do you think there is some comparable obligation with respect to maintaining a 404(c) plan so that it removes fiduciary responsibility from the plan sponsor, trustee, etc.? In other words, how can a Spanish-only speaker exercise independent control over assets in his/her account without some assistance?

Without such assistance, do you think the plan loses 404(c) protection as to those foreign speakers?

While I’m unaware of any court decision on your query under ERISA § 404(c), here’s two quick thoughts that might help you prepare to get your lawyer’s advice about whether a participant’s lack of a language ability might unravel an otherwise good ERISA § 404(c) defense.

The general rule on when a summary must mention foreign-language assistance turns on whether a plan covers a particular number of participants who “are literate only in the same non-English language[.]” Whether information about ERISA § 404(c) and investment alternatives is included in, or furnished apart from, a summary, what matters is whether the directing person reads a language, not whether he or she speaks the language.

Many people speak, but don’t read, English. If U.S. laws treated as ineffective a written warning or disclosure in English given to a person who doesn’t read any language, what would an employer do to deliver an effective warning or disclosure? Did Congress in 1974 intend that a plan fiduciary should be unable to get relief from a participant’s claim because the participant doesn’t read any language?

Despite those observations, a plan fiduciary might consider carefully what non-English language assistance is prudent and reasonable to provide.

Among other steps, a plan fiduciary might consider a notice and some assistance in the non-English language if the plan administrator knows or has reason to believe that a significant number of participants are literate only or primarily in the same non-English language.