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401(k) Plans for Employers

A retirement savings plan, such as a 401(k), is vital to help your employees achieve a secure retirement. If you offer a 401(k) as part of a benefits package, you or someone you designate must:

  • Consider the costs of the plan
  • Select the investment options from which your employees will choose
  • Select the service providers for the plan
  • Monitor the performance of the investments and the provision of services

This article provides general information to help employers understand 401(k) plans, including:

  • General information about employer-sponsored retirement accounts
  • Employer responsibilities regarding 401(k) plans
  • Fees and expenses related to 401(k) plans
  • How to set up a 401(k) plan
  • Different types of retirement plans
  • 401(k) plan recordkeeping
  • 401(k) plans and related tax implications

For more guidance specific to your business, consider consulting with a local business attorney about employer-sponsored 401(k) plans.

General Information About 401(k) Plans

401(k) plans are employer-sponsored retirement accounts. The Internal Revenue Service (IRS) established 401(k) plans through The Revenue Act of 1978. They allow employees to contribute a portion of their wages into an investment account. Many employers match contributions to increase the plan's funds.

Employees typically decide how to invest the money in their 401(k). Or, the employer may include access to professional investment advice through the plan. In some instances, the employer may set up default investments.

A 401(k) benefits both employers and employees. A good 401(k) plan sets employees up for financial security in retirement. Higher contribution rates to an employee retirement plan may help employers attract and retain employees. It also generally allows for significant tax deductions regarding employer contributions.

Employer's 401(k) Responsibilities

An employer that sets up a 401(k) has several responsibilities. The employer (or the person they select to carry out these responsibilities) must comply with the standards provided under the Employee Retirement Income Security Act of 1974 (ERISA). These responsibilities include the following, among others:

  • fiduciary duty to act in the best interest of plan participants
  • Avoid payment of unreasonable plan expenses
  • Act solely in the plan participants' (and their beneficiaries') interests
  • Diversify plan investments
  • Carry out the plan prudently

These ongoing responsibilities are critical for both employers and plan participants. For employers, it ensures they fulfill their fiduciary duty to eligible employees who participate. It also protects the plan participants' retirement plans and allows them to make informed investment decisions.

Fiduciary Duty

The employer and plan provider (if any) have fiduciary responsibilities regarding asset management. If the employer hires a professional service to provide investment advice, the employer also has a fiduciary duty regarding hiring said professional.

Generally, the employer's decision to implement the plan is done so as a fiduciary. Therefore, business owners must make careful and proper decisions regarding any retirement plan they implement.

The fiduciary duty includes the initial choice of plan and the ongoing plan management. If the fees and expenses become unreasonable, for example, the employer must take action to resolve the problem.

Fees and Expenses

Employers must make several considerations when choosing their plan type. Among these considerations are associated fees and expenses. A 401(k) plan's fees and expenses can significantly impact an employee's retirement savings. They may also influence an employee's investment strategy.

There are several types of fees associated with 401(k) plans. The employer typically pays a fee for the maintenance or administration of the plan. Other fees include the following, among many others:

  • Investment Fees: These are fees associated with the management of investments. Participants pay these fees via a percentage of the return on their investments.
  • Individual Service Fees: These are fees paid by participants who sign up for additional plan services or features.

Understanding fees and expenses is important in providing the services necessary for the plan's operation. During the initial plan selection, employers must choose a plan with reasonable fees and expenses in relation to the services the plan provides. Afterward, the employer must monitor the plan's fees and expenses and determine whether they remain reasonable. While ERISA does not set a specific level of fees, it does require that fees charged to a plan be "reasonable."

The process of selecting a service provider and investment options should address many factors, including those related to fees and expenses. You must consider the plan's performance over time for each investment option. This selection process and continual monitoring will allow your employees to make sound investment decisions.

For more information about 401(k) fees, consider reading the U.S. Department of Labor's article on retirement plan fees and expenses.

Nondiscrimination Testing

For a business to take advantage of certain tax benefits, its 401(k) plan generally cannot discriminate between employees, managers, and owners. Every 401(k) plan is subject to an annual review in this regard. The review is called a nondiscrimination test.

The test examines whether rank-and-file employees made proportional contributions compared to owners and managers. It also tests for proportionality between the benefits received. Note that most safe-harbor 401(k) plans are not subject to such a review.

How To Set Up a 401(k) Plan

Employers may choose to set up a retirement plan independently, or they can consult a professional service provider. A service provider can advise employers about profit-sharing, tax credits, and which plan makes the most sense for the business.

Generally, setting up a 401(k) plans involves the following steps:

  1. Adopt a written plan document
  2. Choose and implement a trust for the plan's assets
  3. Formulate a system of recordkeeping
  4. Provide information about the plan to eligible employees

We describe these steps in detail below.

Different Types of Plans

The written plan document binds the employer to the chosen plan. Once an employer chooses the plan document, they must choose the type of plan that is best for the business. There are several types of retirement plan options from which to choose.

The different types of plans also come with various employee contribution limits. For example, in 2023, the contribution limit was $22,500. All 401(k) plans allow for catch-up contributions for employees who are 50 and older. Check your 401(k) plan's design for specific contribution limits.

Traditional 401(k)

A traditional 401(k) involves plan participants making contributions that the IRS has not yet taxed. Simply put, the money goes directly into the 401(k). When the participant makes a qualified withdrawal, the IRS taxes the money withdrawn. The IRS taxes the money at the income tax rate at the time of withdrawal.

An employer may decide the contribution method in a traditional 401(k). For example, an employer may use a nonelective contribution. This method often involves each eligible employee contributing a specific percentage of each paycheck. Another method is an employer matching the employee's contribution. Employers may also decide to use both methods.

Employers may make their traditional 401(k) subject to a vesting schedule. This means the employer can offer a matching contribution once the employee reaches a specified length of employment with the employer.

Roth 401(k)

In 2006, the government introduced Roth 401(k)s. In a Roth 401(k), the IRS taxes all contributions to the plan before they go into the account. When employees make a qualified withdrawal from their Roth 401(k), they do so tax-free. This benefits employees with significant funds in the Roth 401(k). It also allows employees to avoid paying higher taxes due to future tax rate increases.

Note that Roth 401(k)s differ from Roth IRAs. The biggest differences between the two are contribution limits and eligibility requirements. Consider speaking with a financial adviser for more information on the differences between the two retirement plans.

Safe Harbor 401(k)

A safe harbor plan requires employers to offer a specific matching contribution to the employee's 401(k). Because of this, safe harbor plans are not subject to annual nondiscrimination testing.

Automatic Enrollment 401(k)

Employers who choose an automatic enrollment 401(k) enroll eligible employees into it automatically. These often have default investments. An employee may elect not to invest in said default investments.

Small Business 401(k) Plan

Since 1996, small-business owners have had access to small-business 401(k) plans. For purposes of the Small Business Job Protection Act, a small business has 100 or fewer employees. The purpose of the act was to allow small businesses to compete for top talent with larger businesses that, in theory, could offer better retirement plans or benefits. The act, among other things, made it easier for small businesses to offer employees 401(k)s.

There are two small business retirement plans to which small-business owners have access. These plans are as follows:

  • Savings Incentive Match Plan for Employees (SIMPLE) IRA is one alternative to a 401(k) plan for small businesses. It requires employers to contribute a certain percentage per year, and employees may contribute. Depending on the SIMPLE IRA plan, the employer will contribute 3% of the employee's compensation (but only if the employee elects to contribute) or 2% (regardless of whether the employee elected to contribute) per year.
  • Simplified Employee Pension (SEP) IRA is a traditional IRA. However, the SEP IRA is simplified, allowing employers to contribute to their own retirement and their employees' retirement.

Consider speaking to a financial adviser or a business attorney for more information about small business retirement plans.

401(k) Trust Accounts

Each 401(k) requires the employer to set up a trust account. The account holds the 401(k)'s assets, which the employer or trustee must use to benefit the plan participants. The employer may appoint a mutual fund as the trustee, for example.

The trustee's job is to collect and invest contributions from the plan's participants. The trustee also ensures that money withdrawn ends up in the participants' pockets. As the plan participants' fiduciary, the employer must conduct due diligence in selecting a trustee and setting up the trust account. Upon their appointment, the trustee also becomes a fiduciary to the participants.


Federal law requires most 401(k) plans to submit annual reports to the federal government. Therefore, keeping detailed records regarding contributions, withdrawals, investments, and more is essential in administering a 401(k) plan. If an employer works with a service provider, the service provider will likely take care of the recordkeeping.

Providing Information to Employees

Employers adopting a 401(k) plan must provide eligible employees with a summary plan description (SPD). The SPD must cover the following information:

  • Employee benefits
  • Employee rights
  • The plan's features

Read the U.S. Department of Labor's article on 401(k) plans for a complete list of the SPD requirements.

401(k) Plans and Taxes

An employer who offers matching contributions may often claim the matching contribution on its taxes as a business expense. Additionally, small businesses (under 100 employees) may have access to tax credits regarding their chosen plan's startup costs and administrative fees.

Questions About Starting a 401(k)? Contact an Attorney

If you run a business and want to attract and keep talented workers, a 401(k) plan is a valuable tool. However, setting up a 401(k) is complex. Consider contacting a business attorney for legal advice regarding retirement plans for your employees. An experienced attorney can provide guidance regarding the following and more:

  • Tax considerations for your business related to highly compensated employees and matching contributions
  • Profit-sharing contributions for 401(k) plans
  • 401(k) plans for self-employed individuals
  • 401(k) distributions and recordkeeping requirements

A 401(k) plan is a powerful tool for the retention of employees, as it can set up your employees for an enjoyable retirement. Contact an attorney near you today to get started.

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