Give Them The Documents!
There are certain requirements in ERISA that employees be provided with documents like summary plan descriptions. There is also a requirement under ERISA Section 104(b)(4) that a plan administrator must, upon written request from a participant, furnish a copy of the latest updated summary plan description, latest annual report, trust agreement, collective bargaining agreement or any other instrument under which the plan is established or operated. Of course there are penalties for not providing this information.
This brings me to the case of Strom v. Siegel, Fenchel & Puddy (2nd circuit, 2007). In this case, an attorney with the firm was making a claim that she was a "partner" in the firm and thus entitled to participate in the retirement plan. She asked for a copy of the summary plan description to confirm whether she qualified as a participant. The firm refused to provide it to her because she did not qualify as a participant so they had no obligation to provide the plan documents. The Court determined that she was entitled to receive the document. Why? Because how could she appeal whether or not she was a participant without first seeing the document that governed the right to make a claim.
The case seems sort of silly, but it does remind us that participants (or people claiming to be participants) have a right to see the plan documents. Also, ERISA requires that the plan provide them upon request. There should be nothing secretive about what is contained in those documents. You are not obligated to provide more than what the law requires, but my recommendation is always provide what the law requires when asked. That way you don't subject your self to claims like the one in Strom.
Special side note: ERISA obligates plan administrators to provide notices of plan changes, summaries of material modifications and updated summary plan descriptions to participants. When sending these documents to participants, make sure that they also go to participants who may be out on short or long term disability, COBRA, general leave or family medical leave. They are still participants and still entitled to receive the information.
