3(21) vs. 3(38) Fiduciary: An ERISA Attorney Defines the Difference

3(21) vs. 3(38) Fiduciary: An ERISA Attorney Defines the Difference

What does it mean to be a fiduciary? How is a 3(38) fiduciary different from a 3(21)? And honestly, does my plan really need either one?

If you’ve been asking yourself these questions, look no further. We asked those (and more) when we sat down with Carol Buckmann, an ERISA attorney who’s spent over 35 years helping hundreds of 401(k) plan sponsors navigate their fiduciary responsibilities.

We got answers to the most common questions, plus Carol’s insider perspective on fiduciaries, the “401(k) lawsuit boom”, and how a 3(38) can help you outsource both your financial risk and your investment responsibilities.

Ready to get the answers? Let’s start with...

What exactly is a fiduciary?

“This is a question a lot of plan sponsors are uncertain about. In fact, according to a JP Morgan survey, 43% of company fiduciaries don’t think they’re fiduciaries.

That’s right. You can be a fiduciary for your plan without knowing it. Often because there’s confusion about what exactly a fiduciary is.

So here’s a quick explanation:

ERISA defines a fiduciary as a person involved with plan administration, a person with management and control over investments, or a person who gives investment advice regarding plan assets.

Essentially, if you’re responsible for some level of 401(k) plan management or oversight, you’re probably a fiduciary. Which means you have a legal obligation to act in the best interests of the plan participants.

As Carol points out, “The Employee Retirement Income Security Act (ERISA) says every plan must have at least one named fiduciary… If no one is specified as the default named fiduciary in the plan documents, the business owner or the board is on the hook.”

We’ll get into what “on the hook” can look like in a little bit. But first:

What does a fiduciary do in a retirement plan?

The short answer is: a lot. Managing retirement plan investments and administration is no simple task. And being responsible for investment decisions is a heavy burden on its own.

“The fiduciary is the individual or entity responsible for ensuring the plan’s fund lineup is optimized in the best interests of participants. Generally this means it’s diversified, free of poor-performing funds, and fees are reasonable.

Naturally, fulfilling your duties as a fiduciary can be a lot of work. Some of the top investment responsibilities include:

  1. Building the plan’s fund lineup.
  2. Selecting an appropriate QDIA.
  3. Monitoring investment performance, placing poor performing funds on a watch list, and removing funds that aren’t performing well.
  4. Running regular benchmarks (and possibly also rfp’s) to ensure the fees that participants are paying are reasonable.
  5. Meeting (we suggest at least quarterly) to make decisions about optimizing fees and the plan’s fund lineup.

As Carol mentions, this work really adds up. “It’s about the equivalent of a part time job. You have to hold committee meetings. And with any meeting comes time spent preparing as well. Then you have to deal with administrative issues, claims, appeals… so if you’re not devoting a certain number of hours each month, you’re probably not fulfilling your responsibilities correctly.”

And if those responsibilities aren’t being fulfilled… you can be the target of a lawsuit.

Wait, so that means my employees can sue me for high fees or poor investment performance?

That’s right. Poor performance or high fees can be grounds for litigation. And it happens more than you think.

According to Carol, “It happens all the time. Nearly every day, I see headlines in Bloomberg or Benefitslink about another multi-million dollar 401(k) award or settlement... The number of cases is just staggering.”

Those near-daily headlines really add up. Since 2009, shortly before the Department of Labor started requiring providers to more clearly disclose their fees via the 408(b)(2) rule, roughly 83,000 ERISA lawsuits have been filed in federal district courts.

Plans suffering from high fees or poor investment returns are common enough that they’ve given rise to their own litigation industry. There are countless law firms offering ERISA litigation services.

Just try googling ‘ERISA litigation’ and you’ll see what we mean - a ton of websites calling for participants to contact them about possible fiduciary breaches and/or submit their fee disclosures.


After all, attorneys can make a lot of money through ERISA litigation. Even if the cases don’t go to trial.

And with so many plan sponsors unaware of their fiduciary responsibilities or what they need to do to fulfill them (reminder: 43%), it's no wonder this type of litigation is booming.

Carol warns that “Some of the settlements in this 401(k) litigation have been around $50 million. There have been huge awards by the courts. The exposure there, if you’re found liable for fiduciary breach, can be extensive. It’s personal liability too.”

Depending on your resources and experience, that personal liability can be a pretty heavy burden - one that you might want to share with or shift to someone else. An investment advisor can help you with that.

How can an investment advisor service help mitigate this risk?

An investment advisor or manager can take much of your fiduciary responsibility off your plate by acting as a named investment co-fiduciary for your business’ retirement plan (just be sure to get that co-fiduciary acknowledgment in writing).

Sometimes, not only is it prudent to go the “investment advice” route, it might even be required. As Carol points out: “ERISA actually has a pretty advanced standard that’s called the Prudent Expert Standard… You’re supposed to hire experts when you’re not qualified. Unless there’s internal expertise at the plan sponsor level, it’s your responsibility to consult with an expert.”

Basically, if you’re not 100% confident that you have the know-how to manage long-term investments like a financial advisor, “You need to pay for good [fiduciary] services. If you don’t, you could end up being liable for a lot more for not doing the job properly.”

Regardless of your expertise though, a fiduciary can be a fantastic idea. You can look forward to reduced risk and management responsibility, more time (and brainpower) to spend on more impactful business concerns, and general peace of mind.

But not all fiduciaries are created equal. ERISA allows for businesses to hire two classes of investment fiduciaries: the 3(21) and the 3(38).

Evaluating 401(K) providers? Download our insider checklist now.

3(21) vs. 3(38) Fiduciary… what is the difference?

Named for the sections of ERISA which define them, 3(21) and 3(38) fiduciaries are both individuals or entities that provide investment expertise to 401(k) plan sponsors.

And yet, the services of these similarly-named fiduciaries and the level of protection they provide are quite different:

3(21) Fiduciary

“A 3(21) fiduciary is an investment adviser and ‘co-fiduciary’ with the company fiduciary (business owner, board, or named fiduciary). They help build the fund lineup, review the investment selection, and make recommendations. But they don’t have any decision-making or discretionary authority. It would still be the company fiduciary who’d make the actual decisions, which means the company fiduciary is still liable for fees and performance.”

3(38) Fiduciary

“3(38) fiduciaries are different. You can delegate most your responsibility to that fiduciary. A 3(38) will actually make the decisions about what to include in the plan menu, implement it, and then manage the investments on an ongoing basis.”

The most important differences come down to risk and responsibility. As Carol points out, a 3(21) fiduciary acts as an investment advisor who does some of the work and makes recommendations.

By contrast, a 3(38) is an investment manager. Which means they handle the work, review investment options, make decisions, and ultimately take responsibility for your plan’s day-to-day investments.

Because the full differences in these fiduciary service providers can get a little convoluted, we laid them out in a helpful table:

3(21) Fiduciary3(38) Fiduciary
RoleInvestment AdvisorInvestment Manager
Risk ProtectionModerate - Makes recommendations in the best interest of participants, but the decisions and legal responsibility still fall on your plate. High - Makes the actual investment decisions and selections, so they’re responsible for their own mistakes or mismanagement.

You’re still responsible for choosing a good 3(38) and monitoring performance. But if something goes wrong, as long as you’ve done your due diligence, you won’t be liable for the losses in the event of a lawsuit.
Investment Responsibilities
  • Act in the best interests of the plan participants.
  • Research and conduct analysis to determine the best recommended plan lineup.
  • Monitor ongoing plan performance and fees and make recommendations to company.
  • Meet with company co-fiduciary (employee, owner, board, or committee) to make recommendations and discuss rationale.
  • Provide additional and optional support services for participants (i.e financial wellness education).
  • Act in the best interests of the plan participants.
  • Research and conduct analysis to determine the best recommended plan lineup.
  • Monitor ongoing plan performance and fees and make changes as needed.
  • Meet with company fiduciary (employee, owner, board, or committee) to discuss rationale, actions, and performance.
  • Provide additional and optional support services for participants (i.e financial wellness education).

Now, with all that information under your belt, you may be wondering...

3(21) vs. 3(38) Fiduciary… which of these options is right for me?

There’s no need for this to be more complicated than it already is. Making the choice between a 3(38) and 3(21) fiduciary comes down to a few considerations:

Get a 3(38) Fiduciary if…

  1. You are too busy to take on what is essentially a part-time job.
  2. You don’t have someone internally with the required level of expertise. (Remember that “prudent expert” standard. Business finance experience like a CFO might have is not the same as ERISA or investment management knowledge).
  3. You want the maximum fiduciary protection possible.
  4. You want to focus your time and resources on running your business. Not selecting and monitoring investment options.

Basically, if you’re not looking forward to managing your retirement plan investments, you’re comfortable giving up day-to-day control, and you’d rather focus on running your business, we recommend hiring a 3(38) fiduciary.

On the other hand:

Get a 3(21) Fiduciary if…

  1. You have the time & investment expertise needed to meet regularly, monitor investment performance, listen to 3(21)’s recommendations, and come to independent decisions.
  2. You prefer to be actively involved in managing the plan’s investments.
  3. You’re okay with having the ultimate liability for fees and investment performance.

You can think of a 3(21) as the “Lite” type of a fiduciary role. If all you’re looking for is someone to offer guidance and make recommendations, a 3(21) might be the best option for you.

A Word of Caution About 3(21) Fiduciaries

Here’s a final word of warning: “You can’t blindly follow the recommendations of the 3(21) advisor. You have to make an independent decision, and though that’s usually what the advisor recommends, you’re not excused from making an informed decision just because the advisor recommended it.”

In fact, there have been several legal cases in which the defense was shot down after claiming that they were just following the recommendations of their 3(21).

Keep in mind, regardless of who you hire, you still have to pay attention to the plan. Even a 3(38) will not completely protect you from all liability and potential litigation. As plan sponsor, you’re always responsible for overseeing the providers that you have engaged to help mitigate your fiduciary liability.


You don’t get told about the tremendous level of risk that you take on as the plan fiduciary when you start a 401(k).Throughout our interview, Carol’s insight revealed a litigation landscape littered with the lawsuits of plan sponsors who didn’t do their due diligence.

Thankfully, as convoluted as ERISA can sometimes seem, the fiduciary options it lays out help businesses pick a fiduciary that works best for them, whether that’s a 100% DIY solution, consulting a 3(21), or delegating to a 3(38).

If what you’ve read has you considering a 3(38) fiduciary, consider a tech-enabled one! At ForUsAll, we combine technology with a team of dedicated ERISA experts to automate plan administration, engage your employees, and ultimately build a 401(k) that gives you and your employees a good shot at a comfortable retirement.

The best part? We’re able to do all of this often at a fraction of the cost of a traditional provider. Check out our solution today!

About Carol Buckmann

Carol Buckmann is a founding partner at Cohen & Buckmann PC, a boutique law firm practicing exclusively in the areas of employee benefits, executive compensation and investment adviser law. Prior to co-founding Cohen & Buckmann PC, Carol practiced at major law firms for over 30 years, advising about all aspects of employee benefits and compensation, including fiduciary advice, plan qualification and executive compensation. Carol frequently blogs, writes articles and is quoted in the media about current employee benefit issues.

Evaluating 401(K) providers? Download our insider checklist now.