Retirement Plans Newsletter

August 30, 2017

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Jobs

Junior Plan Administrator
Stones River Consulting
in TN, Telecommute
ERISA Consultant
Pension Consultants
in MO
Retirement Plan Administrator
Erickson, Brown & Kloster, PC
in CO
Executive Director
City of Hollywood, FL Employees' Retirement Fund
in FL
Retirement Planning Consultant - Part-time
Transamerica
in TX, Telecommute
Regional Sales Director
OneAmerica Retirement Services
in CT, MA, NJ, PA
Bilingual Benefit Communication Specialist
Benefit Communication Insourcing
in AL, AR, GA, KS, KY, NC, UT, WI

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[Official Guidance]

Text of IRS Announcement 2017-11: Retirement Plans Can Make Loans, Hardship Distributions to Victims of Hurricane Harvey (PDF)
The relief provided under this announcement is in addition to the relief already provided by the [IRS] ... for victims of Hurricane Harvey.... [A] qualified employer plan will not be treated as failing to satisfy any requirement under the Code or regulations merely because the plan makes a loan, or a hardship distribution for a need arising from Hurricane Harvey, to an employee or former employee whose principal residence on August 23, 2017, was located in one of the Texas counties identified for individual assistance by [FEMA] because of the devastation caused by Hurricane Harvey or whose place of employment was located in one of these counties on that applicable date or whose lineal ascendant or descendant, dependent, or spouse had a principal residence or place of employment in one of these counties on that date.... [A] retirement plan will not be treated as failing to follow procedural requirements for plan loans (in the case of retirement plans other than IRAs) or distributions (in the case of all retirement plans, including IRAs) imposed by the terms of the plan merely because those requirements are disregarded for any period beginning on or after August 23, 2017, and continuing through January 31, 2018, with respect to loans or distributions to individuals described in [this Announcement] above, provided the plan administrator (or financial institution in the case of distributions from IRAs) makes a good-faith diligent effort under the circumstances to comply with those requirements."
Internal Revenue Service [IRS]

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[Official Guidance]

Text of DOL Proposed Extension of Transition Period and Delay of Applicability Dates for BICE and other PTEs
39 pages. "This document proposes to extend the special transition period under sections II and IX of the Best Interest Contract Exemption and section VII of the Class Exemption for Principal Transactions in Certain Assets Between Investment Advice Fiduciaries and Employee Benefit Plans and IRAs. This document also proposes to delay the applicability of certain amendments to Prohibited Transaction Exemption 84-24 for the same period.... The Department is particularly concerned that, without a delay in the applicability dates, regulated parties may incur undue expense to comply with conditions or requirements that it ultimately determines to revise or repeal. The present transition period is from June 9, 2017, to January 1, 2018. The new transition period would end on July 1, 2019.... Comments must be submitted on or before [Sept. 15, 2017]."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

[Official Guidance]

Text of DOL Field Assistance Bulletin No. 2017-03: Enforcement Policy on Arbitration Limitation in the Best Interest Contract Exemption and Principal Transactions Exemption
"[The DOL] will not pursue a claim against any fiduciary based on failure to satisfy the BIC Exemption or the Principal Transactions Exemption, or treat any fiduciary as being in violation of either of these exemptions, if the sole failure of the fiduciary to comply with either the BIC Exemption or the Principal Transactions Exemption, is a failure to comply with the Arbitration Limitation in Section II(f)(2) and/or Section II(g)(5) of the exemptions. This policy will continue to apply as long as the exemptions include the Arbitration Limitation now found in Section II(f)(2) and/or Section II(g)(5). To the extent that circumstances give rise to the need for other relief, including prohibited transaction relief, EBSA will consider taking such additional steps as necessary."
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]

Tibble v. Edison: Lessons for Plan Fiduciaries (PDF)
"Plan fiduciaries have no right to take advantage of revenue sharing and should choose the class share that is in the plan's best interest.... In the case of institutional-versus retail-class shares, because they are identical but have lower fees, a prudent fiduciary should know immediately that a switch is necessary ... This marked just the second time that a 401(k) fee case has figured damages." [Tibble v. Edison Int'l, No. 7-5359 (C.D. Cal. Aug. 16, 2017)]
Lockton

Most Claims Dismissed in NYU 403(b) Plans Suit
"[A] federal judge has found that while plaintiffs have adequately pleaded certain claims, a number of the bases upon which they rely as support for other claims could not -- even if proven -- result in a favorable judgment." [Sacerdote v. NYU, No. 16-6284 (S.D.N.Y. Aug. 25, 2017)]
planadviser

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Is an Irrevocable Election Not to Participate Truly Irrevocable?
"The one-time election is, indeed, irrevocable for the employee's entire working career with the plan sponsor.... [T]his can also be a difficult employee relations issue, as there are situations that arise where employees who made a one-time election not to participate in the plan many years ago come to regret that decision."
Groom Law Group and Cammack Retirement Group, via PLANSPONSOR

OregonSaves and Other State-Run Retirement Programs May Require Employer Action (PDF)
"For employers, the state- or municipality-run programs ... may raise several key issues, including: [1] application to an employer that excludes certain workers from the plan ... [2] administrative difficulties for employers that operate in multiple states... [3] coverage of an individual who may be eligible for overlapping or multiple programs ... and [4] the procedures to follow for payroll deduction [IRAs] that include an automatic enrollment or automatic contribution escalation feature, e.g., the date changes occur or become effective."
Milliman

CBO Report: Options for Changing the Retirement System for Federal Civilian Workers (PDF)
50 pages. "Lawmakers have expressed interest in examining the current structure of retirement benefits to ensure that the government provides adequate compensation to attract and retain skilled employees while not paying more than needed to accomplish that goal.... [T]his report analyzes several potential changes to the federal retirement system and their impact on the federal budget over 75 years."
Congressional Budget Office [CBO]

Diocese Failed to Make Contributions to Hospital Employees' Pension Fund for Years
"While records are incomplete, it is clear that between 2008 and time of the sale of the hospital in 2014, the Diocese repeatedly underfunded retirement payments or made no payment ... It is unclear how many years before 2008 the failure to make payments and partial payments goes back.... The bankruptcy of the pension fund impacts 2,800 and is the largest failure in Rhode Island history. The pension fund has a deficit of more than $160 million."
GoLocalProv

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Most Plan Sponsors Remain Highly Satisfied with Their Plan Advisors, But About One-Third May Be at Risk
"Reducing business costs related to having a plan is the top concern for plan sponsors, with 31 percent citing it as an area of focus. Other important themes for plan sponsors include managing their fiduciary responsibility (23 percent), preparing employees for retirement (22 percent) and the risk of litigation and liability (18 percent).... Plan design activity continues to increase and reached a new high at 92 percent, with plan advisors seen as the primary influencer of these changes. Importantly, 79 percent of plan sponsors reported that participants were satisfied with the changes."
Fidelity

[Opinion]

The Case Against Delaying the Fiduciary Rule
"The uncertainty hurts those who would be regulated by the Rule ... How much effort should they devote to complying with rules that may or may not survive this new administrative review? Should companies limit the individuals who are allowed to become fiduciaries? Or, should they institute broad education programs for their advisors when that might not end up being necessary? Can they unwind their new procedures if the law is changed?"
Carol J. Buckmann, JD, via PenChecks

[Opinion]

Sleeping with the Enemy: DOL's Betrayal of Plan Participants and Retirees
"While the investment industry publicly claims lack of readiness to incorporate the DOL's new fiduciary rule into their business, insiders claim that the industry's real motivation is to delay or totally eliminate the class action provisions of the DOL's rule, to deny plan participants access to the court system and full discovery rights. The fact that the DOL has suggested to a court that it will most likely consent to the investment industry's objection on this matter is very interesting given the express language in ERISA regarding its purpose[.]"
The Prudent Investment Fiduciary Rules

[Opinion]

Small 401(k) Plans in 2021: What's in Store for the Marketplace
"[It's] simply a matter of time before the expanded Multiple Employer Plan features -- soon to be referred to as Pooled Employer Plans -- become a reality. We expect this to happen as early as this year under the new tax bill that is moving through Congress.... Where does that leave advisers and investment providers? Potentially in a great position to dominate the marketplace if they understand the opportunity."
The Platinum 401k, Inc., via LinkedIn

Benefits in General

Benefits of Adopting a Formal Severance Plan Under ERISA
"Severance arrangements that do not qualify as ERISA plans are subject to state law, which can leave an employer at both a substantive and a procedural disadvantage. State law requirements can vary from state to state, which makes compliance difficult.... [M]any of these state laws ... include provisions that expose an employer to substantial risk in a lawsuit for nonpayment, including in some states punitive damages, jury trials, and potential personal liability for company officers."
Morgan Lewis

Gig Workers in America: Profiles, Mindsets, and Financial Wellness (PDF)
"The gig model is cost efficient for employers because it converts many fixed costs to variable, reduces benefits costs, and allows for resource flexibility. For workers, gig work provides flexibility and the opportunity to be their own boss. However, the gig model is fundamentally changing the employer-employee relationship. Consequences for gig workers include an unpredictable work stream, a lack of access to benefits, and average pay that is lower than traditional full-time employees."
Prudential

Press Releases

Billings & Co., Inc. is Certified to Industry Best Practices
Centre for Fiduciary Excellence [CEFEX]

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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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