Retirement Plans Newsletter

September 20, 2019

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[Guidance Overview]

Hardship Regs are Finally Final

"[B]eginning in 2020, an employee can make a representation that he or she has insufficient cash or other liquid assets reasonably available to satisfy a financial need, even if the employee does have cash or other liquid assets on hand, provided that those assets are earmarked to pay an obligation in the near future... Employee representations may be made over the phone, provided that the call is recorded.... [T]he plan administrator may rely on the employee's representation, unless the plan administrator has actual knowledge of the contrary.... [T]his could be an administrative minefield for plan sponsors."
Cammack Retirement Group

[Advert.]

SPARK Forum - November 3-5, 2019 -- The Breakers, Palm Beach, FL

Sponsored by SPARK

Join us at the retirement services industry's leading event for top marketing, sales, administration and record keeping professionals. Comprehensive agenda includes topics for Record Keepers, 401(k) Plan Providers, Financial Advisors and Cyber Security Professionals.


[Guidance Overview]

DOL Provides Guidance on Retirement Plan Obligations When Employees Return from Military Service

"The DOL fact sheet provides examples that discuss how to deal with difficult scenarios related to pension accruals for periods of military leave [as required by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)]. Many pension plans calculate accruals based (at least in part) on an employee’s compensation, and the examples focus on how to calculate the compensation an employee would have earned had the employee not been out on military leave."
Jackson Lewis P.C.

IRS Issues Final Hardship Regs

"The agencies characterize the final regulations [as] 'substantially similar to the proposed regulations,' and perhaps more importantly announce that, 'plans that complied with the proposed regulations will satisfy the final regulations.' ... [1] Eligible expenses ... [2] Verbal representations OK ... [3] Contribution suspensions ... [4] 403(b) plans ... [5] Effective dates."
American Society of Pension Professionals & Actuaries [ASPPA]

IRS Memo Explains Requirements for a Retirement Plan 'Contribution'

"IRS [Chief Counsel Memorandum 201935011] explains the two-pronged outlay-of-assets test that contributions to qualified retirement plans must satisfy to be deductible under Internal Revenue Code Section 404(a)."
Mercer

Court Won't Dismiss Claim Alleging Imprudent Selection of Funds Offered to Lowe's Participants

"This is an emerging area of litigation: a challenge to a fiduciary fund menu decision based not on fees (or not exclusively on fees) but on the underperformance of the fund relative to a comparator. Courts are taking different approaches to these claims, and at this point only some very tentative observations can be made[.]" [Reetz v. Lowe's Companies, Inc., No. 18-075 (W.D.N.C. Sep. 6, 2019)]
October Three Consulting

The Effective Cost of Tax-Qualified Compensation (PDF)

"Pension contributions differ dramatically from other employer expenses that are not eventually returned to employees with tax deferred investment earnings. The projections [in this article] ... illustrate the mechanics of diverting some Form W-2 Wages through a tax qualified pension plan with a 40% withholdings rate on top-dollar earnings from Form W-2 Wages that would otherwise apply for the employee group."
H.C. Foster & Company

[Opinion]

Amicus Brief of Pension Rights Center in Support of Supreme Court Review of DB Fiduciary Breach Case (PDF)

27 pages. "The Eighth Circuit has concluded that retirement plan partici­pants and beneficiaries lose their ability to file suit to recover plan losses and ill-gotten fiduciary gains any time the plan's funding status is sufficient to be con­sidered fully funded ... This is in error given ERISA's clear statutory lan­guage empowering plan participants and beneficiaries to sue for precisely such relief against breaching fiduciaries[.]" [Thole v. U.S. Bank, N.A., No. 16-1928 (8th Cir. Oct. 12, 2017; cert. pet. granted Jun. 28, 2019)]
Pension Rights Center

Benefits in General

Number of Employers Offering Financial Wellness Programs Doubles in Recent Years

"[M]ore than twice as many companies are offering workplace financial wellness programs to employees today compared to four years ago (53 percent today versus 24 percent in 2015).... 55 percent of employees today rate their own financial wellness as good or excellent, down from 61 percent a year ago.... 45 percent of employees perform caregiving duties for a family member, a number significantly underestimated by employers.... While 88 percent of employers offer some type of caregiving resources, 71 percent of employees are unaware of these offerings[.]"
Merrill Lynch

Executive Compensation
and Nonqualified Plans

Compensation Clawback Attempts Lead to Unintended Consequences

"In one ongoing case, after the company filed a lawsuit seeking a clawback, the former corporate officers responded by seeking advancement of legal fees and indemnification. The company's bylaws provide that legal fees are advanced to former corporate officers when a claim related to actions taken in their official corporate capacity is brought. The company's compensation clawback provision was silent on the matter ... [T]he court awarded legal fee advancement to the former executives." [Sider v. The Hertz Corp., C.A. Nos. 2019-237, 2019-240, 2019-243 and 2019-246 (Del. Ch. Ct. bench ruling May 14, 2019; ref. order on appeal Jun. 17, 2019)]
Winston & Strawn LLP

Selected Discussions
on the BenefitsLink Message Boards

I Have to Pay Back 401(k) Loan Before I Am Eligible for Re-Hire?

I was terminated from my job in July. I'm now told that I'm eligible for rehire but only if my 401k loans are paid back. I have more money in my 401k than the loans that I borrowed. I do not owe the employer the money, because it was MY money that I was contributing to the plan. Is this legal?
BenefitsLink Message Boards

RMD Amount Was Rolled Over from IRA into 403(b)

Participant turned 70-1/2 during 2019. Participant rolled over his Traditional IRA to his Employer's 403(b)(9) in April 2019. The IRA custodian did not remove the participant's 2019 RMD amount prior to the rollover to the 403(b). The participant is requesting his IRA RMD from the 403(b). He has no other IRAs to aggregate and pull out the 2019 IRA RMD. I realize that an IRA RMD cannot be taken from a 403(b) but I am curious, what is the next step here?
BenefitsLink Message Boards

Settlement Agreement with a Former Employee Means Plan Can Skip Her Profit Sharing Allocation?

Employer terminated employee. Reached a settlement agreement to pay former employee an amount of money. Employer thinks it doesn't have to make any 2019 safe harbor non-elective or subsequent gateway minimum in the profit sharing plan for this individual because the agreement says the employer is not obligated to give her any additional funds of any type -- including plan contributions for the 2019 plan year in which she terminated. Legal?
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Press Releases

Most Popular Items in the Previous Issue

Estimates of the Financial Effects on Social Security of Enacting the Social Security 2100 Act (PDF)
Office of the Chief Actuary, U.S. Social Security Administration [SSA]

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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 2019 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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