Retirement Plans Newsletter

February 6, 2017

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Webcasts and Conferences

Congratulations, Your Health and Retirement Plans Have Been Selected for a DOL Audit!
March 2, 2017 in CA
ISCEBS - North California Chapter

Latest on Labor & Employment and Employee Benefits
March 9, 2017 in NJ
Drinker Biddle & Reath LLP

Retirement Plans: Steering the Fiduciary Ship
March 16, 2017 in NY
Morgan Lewis & Bockius LLP

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Securing America's Retirement: A Legislative Roadmap
18 pages. "The proposals outlined in the roadmap are divided into three sections: [1] Previously introduced legislation; [2] Legislative recommendations; [3] Policy ideas for Congressional action.... This roadmap has one overarching theme -- the voluntary nature of the private employer system. The system's voluntary nature is critical because it allows an employer to choose whether or not to offer a retirement plan, as well as the type of plan that is best for its workforces. As policymakers move to strengthen the retirement system, they must protect those parts of the system that are essential to its success."
U.S. Chamber of Commerce's Center for Capital Markets Competitiveness

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Case Study: Reenrollment, One Year Later
"One year after a reenrollment event, most participants remain invested in the default fund. However, opt-out rates have increased slightly over time. Those participants who opt out tend to be predominantly older, wealthier males who 'try out' target-date funds but ultimately choose to construct their own retirement portfolios"
Vanguard

Understanding Millennial Investors
"Millennials place a significantly higher value on their financial services firms' mobile platforms than Gen Xers and Baby Boomers do. This holds true in the banking, investing and defined contribution retirement sectors."
Corporate Insight

Trump Orders DOL to 'Reconsider' Fiduciary Rule
"Although an earlier draft of the Memorandum had specifically directed the [DOL] to delay the 'applicability date' by 180 days and to seek a stay of any litigation regarding the Rule, the final Memorandum omitted those specific directives. However, the DOL immediately issued a written statement on its website that reads: 'The [DOL] will now consider its legal options to delay the applicability date as we comply with the President's memorandum.' Therefore, the 'applicability date' of the regulation remains April 10, 2017 (at least for the time being), and any delay will need to come from the DOL."
Spencer Fane

President Trump Mandates Reconsideration of DOL Fiduciary Rule
"The Memorandum does not provide a deadline by which the DOL must complete its analysis, and it is unlikely that the DOL could complete its review before April 10 ... One avenue to delay would be through a proposed rule subject to notice and comment. The DOL may determine, however, that the President's Memorandum requiring an updated economic and legal analysis provides the department with 'good cause' to avoid notice and comment.... Congress may also weigh in directly on the rule through legislation ... [T]here are also a number of court cases pending against the rule."
Shearman & Sterling LLP

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President Trump Orders Review of DOL Fiduciary Rule and Addresses Financial Industry in Latest Actions
"The Memorandum comes on the heels of increasingly vocal opposition to the rule from Congressional Republicans.... Employers should keep in mind that this action in no way lessens their fiduciary responsibilities ... While proffered as an effort to remove an unnecessary burden on the financial services industry, it is unclear how much of an effect any delay, revision or rescission of the rule will have. Many financial firms have already spent significant resources on complying with the rule, including revamping products and business models, and are likely to continue on this course."
Jackson Lewis P.C.

Trump's Fiduciary Rule Order Unlikely to Stop Fee Shift
"[Morgan Stanley said] that it plans to move ahead with changes designed to comply with the fiduciary rule, despite uncertainty over whether the regulation will be implemented. Insurers including AIG and Principal Financial stressed after Trump's victory that they would continue to forge ahead as though the rules would be carried out."
Financial Planning

Michigan Leads Effort to Shift State Workers Away from Defined Benefit Plans
"Struggling under the weight of pension and health care obligations, Michigan lawmakers appear ready to take another whack at public employee benefits -- a move that reflects renewed determination to shift workers to 401(k)-style retirement systems, even if it happens in baby steps.... After ending pensions for new state workers in the late 1990s, Republican legislators are now considering moving all newly hired teachers and local government workers to 401(k)-type plans and cutting municipal retiree health benefits. Just one other state, Alaska, has ended teacher pensions."
The Washington Post; subscription may be required

Maintaining Retirement Plan Records
"ERISA requires that some records be kept for a six-year period, while other records must be kept indefinitely (or for at least as long as there is the possibility that the records might be needed to determine participant benefits).... So even though some records may lawfully be destroyed after six years, employers are wise to consider whether certain records should be preserved longer, if they might be critical in potential future litigation."
Retirement Management Services

[Opinion]

California Pension Reform Has Made a Difference
"[E]mployees hired after January 1, 2013, are required to contribute more to their pensions, and must also work longer before they can retire and begin to receive the benefits promised by their employers.... Based on valuations as of June 30, 2015, here's what that means: Cost savings for the state range from 1.2 percent of payroll for miscellaneous plans and up to 5.1 percent of payroll for safety plans. Cost savings for plans in the schools pool are about 1.7 percent of payroll."
CalPERS

[Opinion]

IRI Applauds Presidential Action Delaying DOL Fiduciary Rule
"The Insured Retirement Institute strongly supports President Trump's decision to delay implementation of the [DOL]'s Fiduciary Rule and initiate a thoughtful and comprehensive review of the rule's likely impact on retirement savers.... The rule makes sweeping changes to the existing regulatory framework that will ultimately make it harder for savers to plan for retirement by depriving them of access to affordable holistic financial advice and a wide range of investment options."
Insured Retirement Institute [IRI]

Benefits in General

[Guidance Overview]

Surplus Assets Locked in 401(h) Accounts: Is There a Key (PDF)
"[In] PLR 201611003, the IRS ruled that the use of a Section 401(h) account to reimburse certain retirees covered under the pension plan for eligible medical insurance premiums under an HRA plan will not violate Section 401(h) or cause the pension plan to lose its qualified status ... . While GCM 39785 makes it clear that a VEBA cannot transfer funds to a Section 401(h) account, it is not entirely clear whether the converse is true ... The IRS has recently ruled that a governmental entity can transfer excess Section 401(h) account money outside the pension plan to a Section 115 trust ... Without any guidance on orphan accounts, and without any alternatives to avoid the severe taxes imposed on the legally-required reversion, employers should be careful when terminating a pension plan with an over-funded Section 401(h) account."
Groom Law Group

[Guidance Overview]

DOL Disability Regulations and the Impact on ERISA Plans
"[T]he majority of the ERISA plans impacted by these regulations will be health and welfare plans that provide disability benefits ... An ERISA pension plan may be impacted by these regulations if it provides for early or unreduced benefits in the event of disability. However, the regulations will impact only those pension plans under which a plan fiduciary (rather than an external entity such as the Social Security Administration or the employer's long-term disability insurer) makes an independent determination of a participant's disability."
Spencer Fane

Executive Compensation and Nonqualified Plans

[Guidance Overview]

IRS Publishes Audit Techniques Guide for Golden Parachute Payments
"The Guide includes 'Nine Steps to Perform in a Parachute Examination' and a 'Golden Parachute Payments Corporate Form 1120 Examination Flow Chart,' which provides assistance in determining whether Section 280G is applicable to a public corporation.... The Guide also gives auditors a list of documents to review in connection with golden parachute payment issues, which also may be helpful to practitioners as they consider the reporting and documentation of change in control payments[.]"
Winston & Strawn LLP

San Francisco, Rhode Island Unveil Newest Pay Ratio Surtax Measures
"[In] San Francisco, the yet-to-be-drafted bill which was announced on January 24 would target publicly-traded companies that file compensation disclosures with the SEC.... [T]he Rhode Island House Bill, H. 5141, would subject companies with a pay ratio exceeding 100 to 1 to a 10% surtax and a 25% surtax for ratios exceeding 250 to 1."
HR Policy Association

Press Releases

NFP Acquires Mattecheck & Associates
National Financial Partners Corp. [NFP]

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Lois Baker, J.D., President  loisbaker@benefitslink.com
David Rhett Baker, J.D., Editor and Publisher  davebaker@benefitslink.com
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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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