Retirement Plans Newsletter

January 18, 2017

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Webcasts and Conferences

Dividing Retirement Assets Upon Death or Divorce
March 7, 2017 WEBCAST
American Bar Association [ABA]

2017 Employee Ownership Conference
April 4, 2017 in CO
National Center for Employee Ownership [NCEO]

Trusts as IRA Beneficiaries
April 18, 2017 WEBCAST
American Bar Association [ABA]

2017 Mid-Sized Retirement & Healthcare Plan Management Conference
June 11, 2017 in IL
University Conference Services

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[Official Guidance]

Text of EBSA Proposed Best Interest Contract Exemption for Insurance Intermediaries, Agents, and Companies
220 pages. "The exemption proposed in this document, if granted, would allow certain insurance intermediaries, and the insurance agents and insurance companies they contract with, to receive compensation in connection with fixed annuity transactions that may otherwise give rise to prohibited transactions as a result of the provision of investment advice to plan participants and beneficiaries, IRA owners and certain plan fiduciaries (including small plan sponsors). The proposed exemption includes protective conditions to safeguard the interests of the plans, participants and beneficiaries and IRA owners and is similar to the Department's Best Interest Contract Exemption[.]"
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

[Advert.]

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Sponsored by Burrmont Compliance Labs LLC

Join us as Ilene Ferenczy, JD and Tim McCutcheon, JD give an insider's perspective on how to find answers to your qualified plan compliance questions. Register here for this FREE webcast and earn 1 hour CE credit. Date: Thurs. Jan 26. Time: 2 pm (ET)


[Official Guidance]

Text of PBGC Interest Rate Update for Benefits Payable in Terminated Single-Employer Plans, February 2017
"The February 2017 interest assumptions under the benefit payments regulation will be 1.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for January 2017, these interest assumptions are unchanged."
Pension Benefit Guaranty Corporation [PBGC]

[Guidance Overview]

Correcting 'Best Guesses' on 403(b) Plan Terms by Using the First Remedial Amendment Period Under Rev. Proc. 2017-18
"Considering there have been generations of administrators and vendor staffs which have used a variety of different methods to operate 403(b) plans, [implementing the 2007 plan document requirement] was bound to be a difficult one. And it has been.... 403(b) written plan documents needed to be adopted by January 1, 2010 ... If you timely adopted a plan document (or adopted a new one since January 1, 2010), the terms of that document are unlikely to comply with what we think the rules are, given what we have found through the pre-approval process[.]"
Business of Benefits

[Guidance Overview]

PBGC Sticks Its Head Out of the Water and Issues RFI Regarding Hybrid (Two-Pool) Multiemployer Pension Plans
"The PBGC in its RFI is particularly interested in learning about the terms and conditions that apply to new and existing employers that enter into hybrid arrangements, including alternative benefit schedules, special withdrawal and mass withdrawal payment terms, alternative withdrawal liability arrangements, and the pros and cons of such hybrid arrangements for participants and the PBGC as the insurer of multiemployer plans."
Seyfarth Shaw LLP

[Guidance Overview]

DOL Releases Second Set of FAQ Guidance on Fiduciary Rule (PDF)
"DOL provided clarity regarding: [1] what constitutes a fiduciary recommendation, particularly with respect to advice related to certain distributions ... [2] the safe harbor exception for the provision of educational information, including statements made to participants regarding the benefits of plan participation ... [3] when a statement is a general communication and/or falls within the 'hire me' exception ... [4] how to determine whether the 'independent fiduciary exception' applies and the types of representations on which a service provider can rely ... and [5] the contours of the 'platform exception' and how a service provider may provide investment selection and monitoring information to plan fiduciaries."
Groom Law Group

[Advert.]

Online Learning Course: 401(k) Plan Administration

Sponsored by International Foundation of Employee Benefit Plans [IFEBP]

Learn more about plan design issues, plan investments, fiduciary responsibility and plan fees, employee communications and investment education, automatic enrollment, participant loans, distributions, and plan amendment and termination.


[Guidance Overview]

DOL Issues Additional Interpretative Guidance on New Fiduciary Rule
"The new FAQs focus on the regulation defining 'investment advice' and include some important clarifications, including on the independent fiduciary carve-out, cash sweep programs and interactions with plans that will not be treated as investment advice. The DOL also issued a separate FAQ and Questionnaire for consumers[.]"
Ropes & Gray LLP

[Guidance Overview]

DOL Clarifies Proxy Voting Interpretation, Considers ESG Investments
"Consistent with other recent guidance, IB 2016-1 further provides that a statement of investment policy can include policies concerning economically targeted investments or incorporating environmental, social, or governance (ESG) factors. IB 2016-1 states that if a fiduciary concludes that there is a reasonable expectation that shareholder engagement on ESG issues is likely to enhance shareholder value (after taking the costs involved into account), a fiduciary can -- consistent with ERISA -- take into account ESG impacts in proxy voting and shareholder engagement."
Morgan Lewis

When the Music Changes, So Does the Dance: New Opportunities for Financial Advisers
"[T]he DOL rule may offer business opportunities for financial professionals willing to accept fiduciary status to serve plans with less than $50 million. Providers serving small-market plans who wish to avoid fiduciary status may benefit from working with a financial professional who can serve as plan fiduciary. For plans with assets of more than $50 million, the fiduciary regulation has little direct impact."
Vanguard

Many Workers Are Legally Excluded from 401(k) Plans
"Here's who might not be eligible to save in a 401(k) plan or keep an employer match and how much it's costing them in lost retirement savings....Workers with less than a year of service...Young people under age 21....Part-time employees....Midyear job changers....Workers with less than three (or even six) years of service."
U.S. News & World Report

Should You Get Your Company's 401(k) from a PEO?
"[R]easons that you should talk to an independent 401(k) advisor and benchmark your [professional employer organization's] 401(k) offering against market-leading options: Understanding your 401(k) fees.... Reducing your costs.... Recordkeeping and fund independence.... Ongoing compliance monitoring.... Employee education and advice."
ForUsAll

January 20, 2017 May Be an Historic Day for Pension Plans
"As the American public focuses on January 20, 2017 as the beginning of the Trump administration, the day may also have historical significance for employee benefits law as the date on which a reduction in core pension benefits was permitted.... By January 20th, all participants in the Iron Workers Local 17 Pension Fund are required to have cast their ballots whether or not to reduce core benefits under [MPRA].... [T]he rescue proposal will be approved unless specifically rejected by a majority of plan participants.... Based upon the demographics of the fund it is predicted that the reductions in core benefits will be approved."
Jackson Lewis, vis Lexology

Retirement Accounts in a Second or Later Marriage: The Fun Begins
"The two primary lessons learned: Update beneficiary designations, considering state treatment if community property is involved.... Request that the beneficiary execute a qualified disclaimer."
EisnerAmper

Social Security Full Retirement Age Increases Past 66
"[W]hile the full retirement age is now later -- which means starting benefits at age 62 is 'even earlier' and causes more of a reduction, while delaying until age 70 is 'less' of a delay and doesn't give as much of an increase -- the relative value of delaying Social Security benefits isn't substantively changed.... However, because of how early benefit reductions are calculated for survivor benefits, the new rules actually do substantially reduce the value of delaying widow(er) benefits for surviving spouses -- at least, if they're not also facing the Social Security Earnings Test!"
Michael Kitces in Nerd's Eye View

SEC Finds 10 Firms Violated Pay-to-Play Rule by Accepting Pension Fund Fees Following Campaign Contributions
"The [SEC] announced that 10 investment advisory firms have agreed to pay penalties ranging from $35,000 to $100,000 to settle charges that they violated the SEC's investment adviser pay-to-play rule by receiving compensation from public pension funds within two years after campaign contributions made by the firms' associates.... Without admitting or denying the findings, the 10 firms consented to the SEC's orders finding they violated Section 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-5."
U.S. Securities and Exchange Commission [SEC]

[Opinion]

Workers Beware: Here Come State-Based Retirement Plans
"State-based plans will lack important saver protections because they are not subject to [ERISA].... Moreover, employers are forbidden from contributing to state-based plans.... Worse, the new rule prohibits workers from accessing or controlling their state-run accounts if the state opts to set up a defined benefit plan.... States don't have a very good record when it comes to managing retirement funds."
The Heritage Foundation

[Opinion]

The 401(k) Revolution: A Victory for Retirement Savers
"A parade of news stories tell Americans they face a crisis of insufficient retirement saving, with 'retirement savings gaps' in the trillions of dollars.... But here's the reality: in our 401(k) world, more Americans are saving larger amounts for retirement than ever before. Retirement savings are at record levels, retirement incomes are rising, and Americans are less dependent on the financially-troubled Social Security program. Turning back the clock on pensions wouldn't make sense, even if it were possible."
RealClearMarkets

Benefits in General

[Guidance Overview]

DOL's Final Rule Modifies ERISA Disability Claim Regulations
"Addressing conflicts of interest, the final rule requires decisions regarding hiring, compensation, termination, or promotion of persons involved in making claim decisions not be based on the likelihood the individual will support denial of benefits.... The final rule expanded the definition of 'adverse benefit determination' to include 'any rescission of disability coverage,' including 'cancellation or discontinuance of coverage that has a retroactive effect.' "
Womble Carlyle

Executive Compensation and Nonqualified Plans

Lawsuits and Court Cases of Interest That Involve Stock Compensation
"According to the complaint, Uber recruited software engineers with whom it had employment agreements to grant ISOs with a vesting schedule of 25% after the first 12 months and then monthly vesting thereafter. However, the company changed the provision to allow all of the shares to become exercisable after six months, forcing some ISOs to become NQSOs ... In [a separate case], the Connecticut Supreme Court confirmed that Connecticut can tax income from option exercises by a nonresident if the options were granted as compensation for performing services within the state."
myStockOptions.com

Press Releases

CalPERS Board Re-Elects Rob Feckner as President, Henry Jones as Vice President
CalPERS [California Public Employees' Retirement System]

DOL Files Lawsuit to Recover Employees’ Contributions for Participants in Two Passages Hospice Benefit Plans
Employee Benefits Security Administration [EBSA], U.S. Department of Labor

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
Holly Horton, Business Manager  hollyhorton@benefitslink.com

BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2017 BenefitsLink.com, Inc. All materials contained in this newsletter are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of BenefitsLink.com, Inc., or in the case of third party materials, the owner of those materials. You may not alter or remove any trademark, copyright or other notices from copies of the content.

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