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[Official Guidance]

Text of PBGC Request for OMB Approval of Information Collection for Missing Participants

"[PBGC] is requesting that [OMB] extend approval ... of a collection of information under PBGC's regulation on Missing Participants, with modifications. This notice informs the public of PBGC's request and solicits public comment on the collection.... PBGC intends to modify its information collection to require additional information about missing participants in two categories in order to properly withhold taxes when such participants are located and their benefits claimed and paid. For DC plans that permit Roth accounts, PBGC intends to require a breakdown of qualified and non-qualified Roth amounts transferred to PBGC (if any), and if non-qualified Roth amounts are being transferred, the date the first Roth contribution was made. Where relevant for DB and DC plans, PBGC intends to require identification of the portion of a participant's benefit transfer amount treated as foreign-source income, and if so, for DB plans how that determination was made." 

Pension Benefit Guaranty Corporation [PBGC]

[Guidance Overview]

DOL Finalizes Rule on Selecting Plan Investments

"Updates include one change to the regulation's existing safe harbor on the prudent selection of investments and a new rule establishing minimum requirements for fiduciaries to satisfy their duty of loyalty. The changes are generally effective for investments and monitoring decisions made after Jan. 12, 2021, but fiduciaries have until April 30, 2022, to make any necessary changes to a plan's qualified default investment alternatives (QDIAs)." 

Mercer

Sixth Circuit Recognizes Benefit Plan’s Equitable Lien on Overpayment

"[T]he Sixth Circuit held that Ford could recover its overpayment under ERISA Section 502(a)(3)(B) because it retained an equitable lien on the overpaid funds, even if they were commingled with [the participant's] other assets. The deposit[s] of the overpayment ... were all 'traceable' under the analysis in Montanile and gave the plan an equitable lien over all such accounts that contained the commingled funds, up to the amount of the overpayment." [Zirbel v. Ford Motor Co., No. 20-1149 (6th Cir. Nov. 16, 2020] 

Slevin & Hart, P.C.

District Court Dismisses ERISA Fee Litigation Against 401(k) Plan for Failure to Exhaust Administrative Remedies

"[P]laintiff argued that her claims were 'deemed exhausted' because the Plan did not provide an administrative procedure for breach of fiduciary duty claims and because exhaustion would be futile. The court sided with defendants, first explaining that in the Eleventh Circuit, the exhaustion requirement is not limited to individual benefit claims under a particular plan, but also applies to claims arising from the substantive provisions of ERISA, such as those here." [Fleming v. Rollins, Inc., No. 19-5732 (N.D. Ga. Nov. 23, 2020)] 

Proskauer

DOL's Proposed Regs Likely to Lead to Fiduciary Re-Evaluation of Proxy Voting

"If adopted as written, the proposal would also require that proxy voting policies be included in ERISA plans and made available to plan participants. The proposal allows for fiduciaries to include certain standing rules in proxy voting policies and provides examples of permitted practices[.]" 

Hall Benefits Law

The Conflict Between BlackRock's Shareholder Activism and ERISA's Fiduciary Duties

"The focus of this Article is on the agency costs that may be created by the empty voting of investment advisers to index funds and how they can be mitigated so as to protect the value of private employee pension benefit plans. This Article focuses on BlackRock because it has taken a leadership role in the leveraging of its delegated voting authority. Therefore, the issue [addressed] in this white paper is whether the fiduciary duties of a plan manager of an 'employee pension benefit plan,' as authorized under [ERISA], requires it to investigate BlackRock's shareholder activism. This indirect approach is required as the fiduciary duties of ERISA do not generally extend to mutual funds and ETFs and their investment advisors." 

Bernard S. Sharfman, via SSRN

Truncated IRS Guidance Agenda Heartens Employee Benefits Attorneys

"The tax agency recently trimmed its benefits agenda in half, highlighting 14 priorities for the coming year -- down from the nearly two dozen projects regulators were still plodding through in late September. More than half of the current projects have moved through the regulatory process within the past decade--including a handful of retirement-related tax breaks and pandemic relief efforts that saw bursts of activity over the past six months. Benefits professionals welcomed the surprise-free to-do list as a chance for everyone to play catch-up." 

Bloomberg Law

U.S. Employers Eyeing Innovative Features for Defined Contribution Retirement Plans

"The most popular feature reported is employee assistance with building emergency funds for rainy days through after-tax contribution provisions. Other features employers have adopted or are considering are student loan repayment options linked to the DC plan as well as allowing employees to choose between a variety of benefits, including DC plan contributions." 

Willis Towers Watson

How Should Future Social Security 'Reform' Affect Your 2021 Spending Budget?

"[F]uture Social Security reform may decrease the future benefits you receive from the system and/or increase your future taxes in some manner.... [C]onsider how future uncertain Social Security reform might affect your current spending budget. To help you do this, this post will discuss the estimated size of Social Security's financial problem and several ways you can [the authors'] Actuarial Budget Calculator workbooks to reflect the potential impact of future system reform in your current financial plan." 

Ken Steiner, FSA Retired, and Bobbie Kalben, FSA Retired

How Much Will Retirees Owe in Taxes on Their Retirement Income?

"[E]stimates show that households in the aggregate will have to pay about 6 percent of their income in federal and state income taxes. But this liability rests primarily with the top quintile of the income distribution. For the lowest four quintiles, taxes are negligible -- ranging from 0 percent to 1.9 percent. In contrast, the average liability is 3 percent for the top quintile, 16.4 percent for the top 5 percent, and 22.7 percent for the top 1 percent." 

Center for Retirement Research at Boston College

Proactive Employer Measures for Avoiding Coronavirus-Related Benefits Litigation

"Investment decisions for retirement plans ... Benefits for laid off or furloughed employees  ... Benefits notifications for separating employees ... Changes to COVID-19-related benefits strategy." 

Hall Benefits Law

Are Your Post-Pandemic Employee Benefit Plans Ready?

"As we come out of the initial shock of the COVID-19 crisis, it's time to get proactive again. That means helping employers to take a hard look at benefits utilization, headcounts and permanent changes to employment policies." 

Corporate Synergies

[Guidance Overview]

Public Companies May Need to Amend Nonqualified and Incentive Compensation Plans by Dec. 31, 2020

"This amendment most likely is required for employers that mandated deferrals of amounts that exceeded the limit under IRC Section 162(m) but not those whose plans permitted but did not require deferrals of such amounts. Nevertheless, an employer that actually exercised such discretion with respect to non-grandfathered amounts may need to amend such arrangements as well." 

Porter Wright Morris & Arthur LLP

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415 Limit Affected by Recharacterized Catch-up?

"A participant is catch-up eligible and 415 compensation is $16,500. The participant deferred $8,750 and received a match of $8,750. Does the 415 test pass because $1,000 is re-characterized as catch-up?" 

BenefitsLink Message Boards

Charging Participant Accounts for TPA Fees

"What sort of notice may be required to pay our TPA fees from Plan Assets? We still have not been paid for 2019 services because the client's business has been heavily affected by COVID." 

BenefitsLink Message Boards

DOL Accepts a Signed Fax Page for Form 5500?

"Plan sponsor communicates by fax but not email. Signs 1st page of Form 5500 sent by fax. Will the DOL accept a Form 5500 signed by plan sponsor on a faxed page?" 

BenefitsLink Message Boards

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Press Releases

The SPARK Institute Appoints New Governing Board
SPARK Institute

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IRS Releases New Escheatment Guidance
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Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL]