No matter whom you hire as a retirement plan provider, you will always be on the hook for liability as a plan sponsor. As a plan sponsor, you are a fiduciary, which is the highest duty of care in equity and law because you are responsible for your employees’ assets – even though they make their own investment decisions. So even if you hire someone who advertises themselves as an ERISA fiduciary claiming to take away all of your liability, you still have potential liability if you hired an ineffective plan provider.
That’s why it’s critical that your provider gives you, in writing, documentation that he/she will serve as an ERISA 3(38) fiduciary. Brokers, by definition, cannot act as fiduciaries. (Yet many claim to do so.) And while they certainly can provide investment advice, that is not the same as serving as a fiduciary to mitigate your personal liability. Be sure to ask for proof of bonding and insurance which specifically references 3(38) coverage.