Retirement Plans Newsletter

December 28, 2018

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New Year's Resolutions to Avoid 401(k) Fiduciary Frustration

"[1] Review plan fees ... [2] Review plan providers ... [3] Review salary deferral deposits ... [4] Review compensation ... [5] Review the employee census ... [6] Review active plan participation."
401K Specialist

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Closing the Retirement Savings Coverage Gap: Multiple Employer Plans (PDF)

12 pages. "This paper outlines the legislative and regulatory actions that would be needed to broaden access to MEPs for small employers. It also describes the features that a model MEP might incorporate, including: [1] Automatic enrollment of employees and automatic escalation of employee contributions. [2] Automatic deferral of employee contributions into an investment option designed to preserve principal.... [3] A lifetime income solution among the plan's investment and/or distribution options. [4] Streamlined administration through standardized plan design. [5] Clear delineation of fiduciary and administrative responsibilities[.]"
Prudential

[Opinion]

SPARK Comment Letter to EBSA on Definition of 'Employer' Under Section 3(5) of ERISA (PDF)

"[We] urge the Department to consider eliminating or loosening requirements ... A financial institution should be able to sponsor an [Association Retirement Plan (ARP)].... The Department should eliminate or loosen the 'commonality' requirement.... The Department should eliminate the 'substantial business purpose' requirement.... The Department should not mandate new disclosures."
The SPARK Institute

[Opinion]

An Open Letter to the SEC and DOL: Please Clarify Who Is the 'Client' in Target Date Funds (PDF)

"TDFs have become riskier since 2008 ... [P]roposed prudence standards [would] require consultants to hold client best interests above their own, but it depends on your definition of 'client.' ... Please make it clear that TDF beneficiaries are the 'clients.' These clients want to be protected from investment losses as they near retirement and they think they are being protected, but they are not."
Target Date Solutions

[Opinion]

ACLI Comment Letter to EBSA on Proposed Definition of 'Employer' Under Section 3(5) of ERISA (PDF)

"The proposal falls short of the President's Executive Order.... Neither ERISA nor the Internal Revenue Code include a 'nexus' or 'commonality of interest' requirement ... The Department's various positions and interpretations are inconsistent with law.... There is no legal basis for the proposal's limitations on employers.... Financial service providers should be able to sponsor an ARP."
American Council of Life Insurers [ACLI]

Benefits in General

Evolving the Benefit Mindset: Aligning Employee Benefits with Organizational Purpose

"[1] Assess your current benefit strategies to determine whether they incorporate choice [and] personalization ... [2] Go beyond programs alone by aligning with the objectives of a purpose-driven organization including healthy company culture, integrated wellbeing and inclusion and diversity ... [3] [L]ook for opportunities to connect to and/or further enhance ESG commitments.... [4] Ensure that your overall benefit strategy and programs put the employee at the center of the experience[.]"
Willis Towers Watson

ERISA Implications for Firing a Whistleblower

"The Court held that the whistleblower's cooperation with the DOL was quintessential protected activity, and that defendants were liable because they arranged the vote by the full board of trustees that resulted in the whistleblower's termination, they influenced the vote by recommending the whistleblower's termination, and the trustee had the authority to remove other union trustees or have their positions with the union terminated." [Acosta v. Brain, No. 16-56529 (9th Cir. Dec. 4, 2018)]
Proskauer's ERISA Practice Center

Executive Compensation
and Nonqualified Plans

[Guidance Overview]

SEC Adopts Dodd-Frank Hedging Disclosure Rule (PDF)

"The SEC expressly declined to adopt a definition of the term 'hedge' because it believes that the term should be applied as a broad principle.... [T]he new disclosure requirement ... is intended to cover all transactions that establish downside price protection in a registrant's equity securities ... It applies to the hedging of any equity security issued by the registrant, by any parent or subsidiary of the registrant or by any subsidiary of any parent of the registrant."
Mayer Brown

[Guidance Overview]

ISS Updates FAQs on U.S. Compensation Policies

"There are nine new or materially updated questions [including] ... [19] Will any of the quantitative pay-for-performance screens change in 2019? ... [42] How does ISS analyze 'front-loaded' awards intended to cover future years? ... [47] Which problematic practices are mostly likely to result in an adverse recommendation? ... [50] If a company becomes a 'smaller reporting company' under the SEC's revised definition, how will ISS assess reduction in compensation disclosure? ... [59] How would ISS view any compensation program changes made in light of the removal of 162(m) deductions?"
Dorsey

Rewarding and Retaining Nonprofit Executives Through Incentive Plans: Practical and Legal Considerations

"[This article highlights] current trends as well as practical and legal considerations regarding the use of incentive plans ... [discusses] the prevalence and function of incentive plans, considerations for establishing and managing plans, applicable legal standards to keep in mind when establishing such plans, and key considerations regarding 457(f) plans (common vehicles for longer-term incentive awards).... [and addresses] two related topics that nonprofits often ask about: whether it is appropriate to incorporate financial metrics into incentive plans, and how the recent 2017 tax act's 21 percent excise tax on nonprofit compensation may affect incentive awards."
Bloomberg BNA

Most Popular Items in the Previous Issue

23 Questions to Ask When Choosing a Financial Education Vendor
International Foundation of Employee Benefit Plans [IFEBP]

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Lois Baker, J.D., President
David Rhett Baker, J.D., Editor and Publisher
Holly Horton, Business Manager

BenefitsLink Retirement Plans Newsletter, ISSN no. 1536-9587. Copyright 2018 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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