Difference between 3(16), 3(38), 3(21) fiduciary

9 MIN READEditorial Policy

Since 1974, the Employee Retirement Income Security Act (ERISA) has established guidelines that plan sponsors and administrators must follow in order to act in the best interest of the plan and its participants. If you have an employer-sponsored 401(k), then ERISA covers your plan. 

Some plan service providers offer fiduciary services to 401(k) plans, with different duties and liabilities: 3(16), 3(21), and 3(38).

What are the 3(16), 3(21), and 3(38) fiduciary roles?

The “3” in 3(16), 3(21), and 3(38) comes from Section 3 of ERISA, which contains the rules and defines fiduciary roles into three separate sections.

Section 3(21) of ERISA defines a fiduciary as an individual who exercises any discretionary authority or control regarding the management of an employee benefit plan or the disposition of its assets. 3(21) also refers to an individual who renders investment advice to the plan in exchange for compensation The definition of a 3(21) fiduciary also includes the plan trustee and plan administrator as further defined below.

Section 3(38) of ERISA applies to an investment fiduciary with discretionary controls of the plan’s assets. This means that a 3(38) can select, monitor and replace investments for the plan. While a 3(21) investment fiduciary has to wait for approval for such decisions, a 3(38) can go ahead and make those decisions on behalf of the client. This is why a 3(38) fiduciary must be a registered investment adviser (RIA) under federal or state law, a bank, or an insurance company.

Section 3(16) of ERISA establishes that the fiduciary has a responsibility to ensure the plan is created and managed according to ERISA requirements. If there is no named administrator, the plan sponsor takes on this role automatically. The 3(16) administrator typically handles reporting and disclosure requirements, summary plan descriptions, participant disclosures, and the plan’s Form 5500 filings.

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What are the key similarities and differences between 3(16), 3(21), and 3(38) fiduciary roles?

3(21) and 3(38) investment fiduciaries are similar in that the focus is on investment recommendations. A 3(21) investment advisor is a co-fiduciary and can provide investment recommendations, but he or she has to wait for approval from the client to execute those investments. On the other hand, a 3(38) investment manager is able to make investment decisions on behalf of the client.

A 3(16) fiduciary focuses on the plan administrative functions, including meeting ERISA reporting requirements, disclosure requirements, filing the correct paperwork with ERISA and making the required disclosures to plan participants.

What are the benefits of hiring 3(16), 3(21), and 3(38) fiduciaries?

There are three key benefits: improved compliance, lower cost, and the ability to focus on your business.

1. Improved compliance

By hiring a 3(21) and 3(38) investment fiduciary, a plan administrator can share his or her fiduciary responsibilities with the investment advisor or investment manager. Hiring the services of a professional investment professional helps the plan administrator to demonstrate that he or she is meeting the fiduciary responsibilities set by the U.S. Department of Labor and acting in the interest of plan participants.

Keep in mind that hiring a 3(21) or 3(38) doesn’t mean that the plan administrator can just wash his or her hands from involvement. ERISA requires that the plan administrator carefully selects and monitors the hired investment advisor or manager.

Hiring a 3(16) plan administrator helps a business owner reduce its fiduciary liability on the administrative side.

2. Lower cost

The DIY attitude of owners of small- and mid-sized businesses is essential to run lean, efficient organizations. While business owners are great at wearing many hats, it doesn’t necessarily mean that they’re doing things cost-efficiently.

One major benefit of hiring a 401(k) fiduciary is that you’re hiring a professional whose main job is to advise and manage 401(k) plans. This can translate into cost savings in operating and maintaining the 401(k) plan. Monitoring your 401(k) costs is not only important to fulfill your fiduciary obligations, but also to help minimize annual investment fees or expenses which could cost thousands of dollars in forgone retirement savings for your employees down the road.

3. Ability to focus on your business

Offloading administrative tasks and necessary legwork to make informed investment decisions liberates your time to focus on growing your business. By working with investment professionals and third-party administrators you can free up your time and help create more value for your company.

What type of fiduciaries are businesses hiring?

In its 2018 Survey of profit-sharing and 401(k) Plans, the Plan Sponsor Council of America (PSCA) found that 70% of defined contribution plan sponsors retained an independent investment advisor to assist with fiduciary responsibilities.

In a survey of 590 defined contribution plans, the PSCA found that:

  • 36% of plans used a 3(21) fiduciary

  • 20% of plans used a 3(38) fiduciary

  • 14% of plans used a 3(16) fiduciary

According to 2018 data from the PSCA: “More than one-third of plan sponsor respondents offer investment advice to participants. Advice was offered by a registered investment advisor (30.8%), a certified financial planner (28.8%), or a third-party web-based provider (20.2%).”

Are you looking for a fiduciary provider for your 401(k)?

As an employer offering a retirement plan, you have fiduciary responsibilities covered under the standards of conduct covered under ERISA. As a business owner, you want to take care of your employees, and that includes providing access to quality investment education and/or advice and low cost. Opting to hire a service provider to share your fiduciary responsibilities can help you manage your fiduciary risk.

Human Interest provides 3(21) investment advisory and 3(38) investment management services to help with your investment decisions.¹ Human Interest also provides full 401(k) plan compliance with testing, IRS Form 5500 filing, IRS-approved plan documents, audit package, participant disclosures, and recordkeeping services.

At Human Interest we support thousands of small and medium-sized companies who are saving for their future. Schedule a time to chat, and feel free to ask us anything.

Start a 401(k) with Human Interest

A Human Interest 401(k) plan can connect directly with your favorite payroll provider and has zero transaction fees.

Wendy Baker is Senior Legal Counsel at Human Interest, bringing over 25 years of experience exclusively in the ERISA space, spanning defined contribution plan recordkeeping and administration. She has a J.D. from Case Western Reserve University, is a member of the North Carolina and Ohio Bars, the American Bar Association, and industry groups.

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Investment advisory services are offered through Human Interest Advisors LLC, a Registered Investment Adviser and subsidiary of Human Interest Inc. An investment advisory fee is paid to Human Interest Advisors (HIA) of 0.01% of plan assets and a separate fee for recordkeeping services and custody-related expenses is paid to Human Interest Inc. (HII) of 0.05% of plan assets. Both fees are deducted on a monthly basis from the employee's account according to the HII and HIA Terms of Service. All prices are exclusive of applicable taxes. If the plan sponsor elects to hire an external investment advisor, the plan sponsor will pay such advisor as agreed between the plan sponsor and advisor. For more information, please see our pricing page. Similar services may be available at a lower cost from other vendors.