Retirement Plans Newsletter

August 10, 2016

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[Guidance Overview]

Interesting Angles on the DOL's Fiduciary Rule, Part 15
"Since a pure level fee, or non-conflicted, adviser won't commit a prohibited transaction and therefore won't need an exemption, that adviser will not be bound by the best interest standard for investment advice to individual IRAs. Instead, the adviser will only be subject to the conduct standards in the securities laws.... The biggest [exception] is a recommendation to a plan participant to take a distribution and roll over to an IRA with the adviser."
FredReish.com

[Advert.]

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[Guidance Overview]

Section 457(f) Gets Its Groove Back
"[T]he proposed 457 regulations have resurrected rolling vesting, and also permit a covenant not to compete to create a substantial risk of forfeiture, subject in both instances to some tricky prerequisites. This added design flexibility for 457(f) plans is good news for non-profit organizations, which increasingly must compete for talent with for-profit organizations."
E is for ERISA

[Guidance Overview]

A Closer Look at the Restrictions on Hiring a Retired CalPERS Annuitant
"[T]he general rule is that an agency cannot hire a retired annuitant to work for your agency without reinstating that individual back into CalPERS.... The two common exceptions are found in Government Code sections 21221(h) and 21224.... [W]hen an agency is utilizing either one of these exceptions, it must be aware of the strict and complicated requirements associated with these exceptions."
Liebert Cassidy Whitmore

Text of Federal District Court Opinion: Fiduciary Breach Occurred, and Statute of Limitations Was Tolled, at Time of Investment Commitment, Not Time of Actual Investment (PDF)
"The failure to do due diligence was in conjunction with the investigation of [Amalgamated Bank (AB)] and the Longview Fund; this alleged failure ... took place prior to the decision to enter into the [investment management agreement] with AB ... Plaintiffs' position is dependent on the actual investment of money being a fiduciary act, rather than just a ministerial one ... [T]he Court concludes that ... the 'true' breach was Defendants' decision to approve, without exercising the requisite due diligence of a prudent investigation, the Longview investment and relationship with AB in the first place, which was consummated ... when the IMA with AB was signed." [Slack v. Burns, 13-CV-5001 (N.D. Cal. July 20, 2016)]
U.S. District Court for the Northern District of California

Uninvested Cash Can Be a Symptom of a Bad 401(k) Recordkeeper
"Problems related to transactions involving money in or out of a 401k plan are the easiest to identify. New contributions should appear on recordkeeper reports within 3 days of deposit and distribution checks should be in the hands of the participant or rollover institution within 2 weeks of request. Problems with other transactions -- ones that happen completely inside a 401k plan -- can be more difficult to discern."
Employee Fiduciary

[Advert.]

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Results of the Charles Schwab 2016 401(k) Participant Survey (PDF)
17 pages. "Fewer than half of participants know how much they should have saved for a comfortable retirement ... 401(k) plans are a 'must-have' benefit for job-seekers Without it, nine in ten would think twice about taking a job ... Fewer than half are confident making 401(k) decisions on their own ... One-third have decreased or made no changes to 401(k) contributions in past two years."
Charles Schwab

Results of American Century Investments Fourth Annual Plan Participant Study
"Saving continues to be the area for which employees have the most regret and need the most guidance. Plan participants count on their employers' direction and guidance in helping save and invest for retirement. Participants strongly value a retirement plan as part of their compensation and benefits."
American Century Investments

Fiduciary Checklist for Target Date Fund Decisions (PDF)
"Fiduciaries should be able to answer the following questions to feel confident they are following the [DOL] Tips for ERISA Plan Fiduciaries released in 2013."
Strategic Benefit Services

Financial Advisers Can't Overlook the Prudent Investor Rule
"This article calls attention to the [DOL's] imposition of the 'prudent investor rule' on financial advisers to retirement savers. This article also canvasses the customary role of an investment policy statement in promoting compliance with the prudent investor rule by professional fiduciaries."
Max M. Schanzenbach and Robert H. Sitkoff, via SSRN

Trade Group Trying to Kill California Bill That Would Make State-Run Retirement Accounts a Worker Benefit
"Brian Reid, ICI's chief economist, said making it so easy could encourage some employers who offer 401(k) plans -- which come with administrative and regulatory costs -- to eliminate that employee benefit and instead sign their workers up for Secure Choice. What's more, he said employers who don't already offer a savings plan might be less interested in doing so if the state plan exists."
Los Angeles Times

Why Millennial Entrepreneurs Should Consider a Solo 401(k)
"If your goal is to bank as much of your entrepreneurial wealth as possible, a Solo 401(k) has the edge over other self-employed retirement plans.... Besides being able to contribute more to a Solo 401(K), these plans can create some insulation for millennial entrepreneurs who are worried about getting hit with a big tax bill.... Running a business requires a steady cash flow and if you need money quickly, a Solo 401(k) is an asset you can tap in a pinch."
U.S. News & World Report

[Opinion]

U.S. Chamber of Commerce Comment Letter to the PBGC on Mergers and Transfers Between Multiemployer Plans
"Congress established a framework of conditions, limitations, factors for consideration, protections, notices and procedures that all serve to observe and protect the interests of participants while permitting the plans wide latitude within such a framework. [The Chamber's] comments focus on ensuring that substance takes precedence over form and that all parties receive the information and assistance they need without being overly burdened."
U.S. Chamber of Commerce

Benefits in General

Paper or Digital? Employee Benefit Enrollment Disconnect Could Hurt Employers
"[O]nly 38 percent of surveyed employers think that their employees want to use a computer to enroll, while more than a quarter believe that their employees still want to enroll through paper forms.... [But] 68 percent of employees want to enroll in their benefits online or electronically and only 16 percent want paper enrollment forms.... While 1 in 4 employers automatically re-enroll their employees annually in at least some benefits, less than 10 percent of employees prefer this automated process."
LIMRA

Executive Compensation and Nonqualified Plans

ISS 2017 Policy Survey Focuses on Executive Comp, Incentive Plan Design and Governance Issues
"Similar to last year's survey, this year's survey is relatively light volume-wise in the executive compensation arena, with only three main questions overall. However, say-on-pay-related policies could be in line for an important update if the survey topics ultimately spur changes. Also note that ISS does not always include all areas of potential change in the survey, so voting policy changes could go beyond the issues covered in the survey. Here's a look at those issues:"
Willis Towers Watson

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BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2016 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 that content. You may not alter or remove any trademark, copyright or other notice from copies of the content.

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