On September 30, the Department of Labor (DOL) issued proposed regulations that would require electronic filing of apprenticeship and training plan notices and top hat plan statements. Use of the electronic system is voluntary pending adoption of final regulations, and the DOL has requested comments on its proposed electronic system.

The Employee Retirement Income Security Act of 1974 (ERISA) requires plans subject to ERISA to comply with certain reporting and disclosure requirements under Part I of Title I (Part I requirements) (see Practice Notes, Fee and Investment Disclosure Requirements for Participant-Directed Plans and Service Provider Disclosure Requirements for Pension Plans). However, under an administrative exemption, welfare plans that provide exclusively apprenticeship or training benefits are not required to meet the Part I requirements if the plan administrator:

(29 C.F.R. § 2520.104-22.)

Similarly, a streamlined method to satisfying the Part I requirements is available for top hat plans if the plan administrator:

(29 C.F.R. § 2520.104-23 and see Standard Document, Top Hat Plan Letter.)

Under the DOL's EFAST2 system, effective for reporting on 2009 plan years (generally filed in 2010) and thereafter, Form 5500s for ERISA-covered plans must be filed electronically. However, EFAST2 does not accept apprenticeship and training plan notices or top hat plan statements, so these plans currently must file their notices or statements with the DOL on paper and submit them through regular mail. Under the proposed regulations, these plans would be required to submit their notices and statements electronically.

The proposed regulations would require apprenticeship and training plans and top hat plans to file their notices and statements online through the Employee Benefits Security Administration's (EBSA's) website. There are separate pages for apprenticeship and training plan notices and top hat plan statements, and each page provides instructions and a link to begin the filing. The proposed electronic system would not make substantive changes to the notices and statements. The DOL acknowledged, however, that filers using the electronic system would be required to input an email address (a requirement not expressly referenced in current regulations governing these filings).

According to the DOL, the proposed electronic filing system will (similar to the transition to EFAST2):

Plan administrators may immediately begin using this electronic system to submit apprenticeship and training plan notices and top hat plan statements on a voluntary basis until the DOL's proposed regulations are finalized. The DOL will treat plan administrators who use the electronic system according to the proposed regulations as having satisfied the current mail requirements under DOL Regulation Sections 2520.104-22 and 2520.104-23. After the rules are finalized, however, filings with the DOL by mail or personal delivery will no longer be allowed.

The DOL has requested comments on the design and operation of its proposed electronic system, which are due by October 30, 2014 to ensure their consideration. For example, because notices and statements filed electronically will be posted on the DOL's website and available online to the public, the DOL noted that there may be privacy concerns relating to public accessibility of a plan administrator's email address (an issue on which the DOL specifically invited comment).