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FAQ: Re ERISA’s Records Retention For Employee Benefit Plans

1. How long am I required to keep employee benefit plan records under ERISA?

ERISA has two distinct recordkeeping requirements:

  1. ERISA Section 107 requires retention of records for 6 years from the date of filing, including all required notices and disclosures, and various governmental filings like the Annual Report Form 5500.

  2. ERISA Section 209 requires plan sponsors to maintain records sufficient to determine the benefits due, for “as long as they may be relevant to a determination of benefit entitlements.”

Actual requirement may vary from plan to plan and from participant to participant. Because the statute of limitations on a benefit claim does not generally commence until the claim is actually and finally denied, benefit plan records may need to be maintained for many years.

2. So does that mean I need to keep documents for longer than 6 years?

Possibly - several court cases, including a 2016 case out of the 9th Circuit, have faulted employers for failing to retain records sufficient to determine a participant’s entitlement to benefits. The 9th Circuit case involved employee records dating back to 1976. See,Estate of Barton v. ADP Security Services Pension Plan, 2016 WL 1612755.

3. Are there any penalties associated with not keeping these records?

ERISA Section 209 imposes a $10 a day civil penalty for failure to retain records as required by ERISA, absent reasonable cause. Failure to properly protect and maintain plan records might also be a breach of fiduciary duty.

4. May records be stored electronically?

Generally yes. However, when developing a records retention policy, plan sponsors and fiduciaries will need to consider current day technology and privacy requirements (e.g., HIPAA, cyber risks, etc.) as well as their general fiduciary duties to act prudently.

Please feel free to contact one of our attorneys regarding any questions you may have about the records retention requirements under ERISA.

©Boutwell Fay LLP, All Rights Reserved. *This handout is for information purposes only, may constitute attorney advertising. It should not be construed as legal advice and does not create an attorney client relationship. If you have questions or would our like advice with respect to any of the information, please contact us.

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