Your 401(k) Committee Playbook: AI Minutes, Privilege Risk, and Getting the Right People in the Room

Your benefits committee just wrapped up its quarterly meeting. Someone asks whether Copilot or another AI transcription tool can handle the minutes. Meanwhile, your HR director wants to know whether in-house counsel should formally join the committee — or just attend. Getting the answers wrong may have real consequences under the Employee Retirement Income Security Act of 1974 (ERISA).

This article addresses two common benefits committee governance questions:

• Should your committee use AI tools like Copilot to create meeting minutes?
• Who should (and should not) serve as a formal committee member — and why does it matter whether legal counsel is “in” or “at” the meeting?

AI and Meeting Minutes: Use It to Write, Not to Record

AI-powered transcription tools are now embedded in everyday platforms. Our recommendation: Avoid using AI to create verbatim transcripts of meetings.

Why AI Transcripts May Be Particularly Risky Under ERISA

ERISA committees operate under a litigation and regulatory framework that may make verbatim records especially risky. Several features of the ERISA framework compound this risk.

Privilege may not fully protect you. Under the fiduciary exception, communications about plan administration may be discoverable — even when counsel is present. The rationale is that plan participants are sometimes viewed as the “real clients” of the fiduciary relationship. A corporate board’s AI transcript might be privileged; an ERISA committee’s transcript may be presumptively producible. This principle has been extended to Department of Labor (DOL) compliance investigations, not just enforcement actions — suggesting exposure even in routine audits.

Practical takeaway: A transcript created for convenience could potentially become a document you may be required to produce.

ERISA’s process standard may turn detail against you. Courts evaluate fiduciary prudence by examining the process the committee followed, not the outcome. Approved minutes demonstrate that process. A verbatim transcript captures the raw deliberation: tentative remarks, half-formed questions, moments of uncertainty. A plaintiff could cherry-pick statements to argue the committee “dismissed” a risk or “acknowledged” a problem without acting — even when the actual process and deliberations as a whole were sound.

Practical takeaway: A verbatim record may document the messy middle of deliberation rather than the sound process you actually followed.

The “two hats” distinction may become difficult to manage. Employers act in both a fiduciary capacity (plan administration) and a settlor capacity (plan design and amendments). Communications in a settlor capacity generally remain privileged; fiduciary communications may not. Well-crafted minutes can maintain this boundary. An AI transcript captures everything without distinction, making it harder to demonstrate that particular topics were non-fiduciary.

Practical takeaway: A transcript may blur the line between fiduciary and settlor communications that minutes would keep distinct.

Omissions could become problematic. Courts have sometimes drawn negative inferences from the absence of documentation — reasoning that if an evaluation is not mentioned, it may not have happened. But when a transcript exists alongside official minutes, any omission from the minutes might be characterized as concealment. Editorial judgment in drafting minutes — entirely appropriate on its own — could appear suspicious when compared to a “complete” record.

Practical takeaway: A transcript may turn ordinary editorial judgment in drafting minutes into apparent concealment.

Broader exposure than other corporate committees. Individual participants, class action plaintiffs’ firms, and the DOL all may have standing to demand these records. The demand requirement and business judgment rule protections available to corporate directors may not apply to ERISA fiduciaries in the same way.

Where AI May Help

A more defensible approach: use AI only as a post-meeting drafting aid.

• Pre-meeting framework. Feed prior minutes and current materials to the AI tool to generate a draft framework. The secretary annotates with contemporaneous notes during the meeting.
• Post-meeting polish. The secretary prepares handwritten or typed notes, then uses AI to organize them into a draft using prior minutes as a template. The chair reviews before presenting to the committee for approval.

In this approach, the AI functions as a word processor — not a recording device. The secretary’s judgment controls what enters the official record.

What minutes may usefully capture. 

Well-drafted minutes typically reflect:

• Materials reviewed
• Advice received (including from advisors)
• Key factors considered
• Decisions made and the rationale
• Assigned follow-up actions 

Committee Composition: Getting the Right People in the Room

Committees may benefit from three core perspectives:

• Authority (Executive leadership). Someone with authority to make decisions and allocate resources — not necessarily the CEO, but a senior leader who can commit the organization’s resources. At least one member of the committee should have the authority within the company to discuss benefit plan-related concerns with executive leadership.
• Financial Literacy (Finance). An individual with the financial literacy to evaluate investment performance, fees, and plan economics.
• Operational Insight (Human Resources). The team closest to day-to-day administration, participant communications, and workforce dynamics.

Additional members can be added, but this three-legged stool may provide a useful foundation for determining who best to serve on a benefits committee. 

In-House Legal: Advisor, Not Member

The distinction between counsel being “in the room” and “on the committee” is not merely semantic — it could affect privilege, role clarity, and litigation positioning.

Why formal membership may create problems. When a lawyer serves as a voting committee member, communications at the meeting may be treated as fiduciary in nature. ERISA’s fiduciary exception may mean those communications are discoverable. The lawyer becomes the fiduciary, not counsel providing legal advice to a client. This could weaken privilege arguments and reduce the committee’s ability to seek confidential guidance on matters involving its own potential liability or settlor-level plan design questions.

Why attendance as an advisor may preserve flexibility. When counsel attends in an advisory capacity — present to answer questions but not as a voting member — the committee may retain the ability to separately and confidentially consult with that attorney about matters outside the fiduciary exception. These may include the defense of committee members in any future proceeding, settlor functions like plan design, amendments or terminations, and corporate-level decisions affecting the plan that are not fiduciary acts. The attorney’s role is to advise the fiduciaries, not to be one of them.

If your organization prefers legal membership. Some clients strongly prefer a legal representative on the committee. In that case, consider appointing someone from the legal team who would not be expected to serve as litigation counsel if a fiduciary breach claim arises. This approach could help avoid the conflict that might result if the committee’s own member is later needed to defend the committee’s actions.

Whatever structure is chosen, it may be advisable to clearly reflect it in the committee charter and meeting materials.

Additional Committee Composition Considerations

The CFO of a public company with employer stock in the plan may warrant caution. Access to material non-public information could create conflicts and securities law complications. A senior finance team member who reports to the CFO may be a better fit. Additionally, consider whether this is the best use of a CFO’s time — committee service involves meaningful preparation.

Committee size varies by plan complexity. Three to five members is common for mid-market plans; larger plans may have more. When retirements create opportunities to resize, evaluate whether all members are genuinely engaged and whether the roster includes redundant representation.

For background on structuring committee responsibilities, the DOL’s Meeting Your Fiduciary Responsibilities is a useful baseline. For more on AI and 401(k) fiduciary obligations, see our prior article, Cybersecurity in the Age of AI: Best Practices for Employee Benefits Administration.

Key Considerations

1. Avoiding AI-generated transcripts of committee meetings. The fiduciary exception, ERISA’s process-oriented prudence standard, and the two-hats doctrine may combine to make these records potentially risky.
2. Using AI only after the meeting as a drafting tool. Letting the secretary’s judgment control the record is appropriate and may help reduce risk.
3. Adopting and communicating a no-recording policy. It may be helpful to have the chair or secretary briefly confirm this at the start of each meeting.
4. Ensuring the committee includes authority, finance, and HR perspectives.
5. Keeping legal counsel as an advisor, not a voting member, unless there is a specific reason otherwise.
6. Evaluating whether executives with potential conflicts (e.g., CFO with access to material non-public information) should serve on the committee.
7. Documenting governance decisions clearly and consistently. The record of a prudent process may be among your best defenses.

Conclusion

Benefits committee governance calls for intentionality — both in how your committee operates and who is at the table. ERISA’s fiduciary framework demands care that distinguishes benefits committee governance from other corporate committee work. Foley’s attorneys continue to monitor developments and are available to assist with committee governance reviews.