Can an employer or its board of directors be an ERISA fiduciary?

Where a plan is established and maintained by an employer, members of the board of directors of the employer are fiduciaries only to the extent they perform fiduciary functions, i.e., a fiduciary function includes selection and retention of a plan fiduciary.

An employer does not act as a pension plan fiduciary when it performs "settlor" functions. For example, an employer is not acting as a fiduciary when it negotiates benefit changes in collective bargaining, even though it also serves as the plan administrator and the plan administrator is a fiduciary only to the extent engaged in fiduciary act of plan administration. An employer's unilateral decision to amend a plan remains unfettered by fiduciary duties to participants and beneficiaries. These settlor functions include actions an employer takes in creating, amending, or terminating an employee benefit plan that it administers.