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Retirement Plans Newsletter

February 23, 2021


[Guidance Overview]

Send Out the Search Party: Retirement Plan Fiduciary Duties Under DOL Missing Participant Guidance

"The guidance ... puts in writing many, if not all, of the various suggestions DOL investigators have made for locating these participants during investigations.... [T]he documents also offer welcome transparency, in particular regarding the investigative processes and case-closing practices that investigators should be following when conducting these investigations."  MORE >>

Thompson Hine

[Sponsor] EXCLUSIVE - Who's the Employer (WTE)

WTE, 8th Edition, Authored by S. Derrin Watson, JD. Over 30% NEW material. Dozens of new examples. Full explanations of how employer and employee status impact testing. Improved organization -- easy to find answers. or 612-605-2266  MORE >>

Sponsored by Burrmont Compliance Labs LLC

[Guidance Overview]

DOL Final Proxy-Voting Rule Less Stringent Than Proposed

"[T]he rule's fate is uncertain, as the Biden administration is reviewing regulations that could hamper the president's climate-change agenda.... [T]he path toward reversing the rules -- which are already in effect -- is neither short nor straightforward.... DOL could suspend enforcement of the rules in the meantime, but has yet to indicate if it will do so."  MORE >>


PBGC Announces New General Counsel Appointment

"The [PBGC] announced the appointment of Russell Dempsey as General Counsel.... In his role, Dempsey provides advice and counsel for the Director and the agency on legal and regulatory issues. This includes enforcement of Title IV of ERISA through litigation, negotiation, drafting regulations and guidance, deciding administrative appeals, and administration of the Freedom of Information Act. He also advises the agency on corporate governance, ethics, procurement, labor relations, and privacy."  MORE >>

Pension Benefit Guaranty Corporation [PBGC]

TPAing in the Time of COVID, Part I

"The COVID-19 pandemic presented our industry with new and unusual challenges. It also brought old challenges to light and required us to address them immediately rather than postponing them ... until the end of next busy season or even the end of the busy season after that.... Making your workforce entirely remote in 24 hours … and then what? ... The CARES Act ... How on earth does Zoom work? ... How on earth do we keep our sanity?"  MORE >>

TriStar Pension Consulting

Exceptional Usefulness and Quality icon Annual Defined Contribution Plan Deadlines for the Plan Year Ending December 31, 2021 (PDF)

"[This 7-page] chart provides an explanation of key plan events and the deadline for each for Section 401(a) and 401(k) defined contribution plans with a plan year ending December 31, 2021."  MORE >>

VOYA Financial

Introduction to Fiduciary Prudent Practices (PDF)

34 presentation slides. Topics: [1] Purpose of the Prudent Practices; [2] How the Practices evolve and are validated; and [3] An overview of the Practices for advisors and stewards.  MORE >>

Broadridge Fi360 Solutions

Sustainable Investing: 401(k) Plan Sponsors Take Note

"A recent survey found that 77% of millennials said socially responsible investing (SRI) factors -- environmental, social and governance (ESG) -- were the most important item they consider when making an investment decision."  MORE >>

Lawton Retirement Plan Consultants

Taking Account of State-Run Retirement Plans

"[In] the most recent month-to-month data, all three programs are growing in assets and the number of employers registered and funded accounts. Deferral rates in all three are holding steady. The amount withdrawn, as well as the number of accounts making withdrawals, also has grown. The growth in all these programs, in all these areas, was pronounced in the fourth quarter of 2020."  MORE >>

American Retirement Association [ARA]

New Jersey Governor to Propose Full Pension Payment for First Time Since 1996

"New Jersey Gov. Phil Murphy ... will call for a $6.4 billion payment to the pension system in his budget address Tuesday ... The Murphy administration has been ramping up pension payments and originally intended on making a payment of $5.76 billion for the fiscal year that begins in July."  MORE >>

The Wall Street Journal; subscription may be required

Puerto Rico Governor Rejects Key Deal with Creditors to Reduce Debt Due to Pension Cuts

"Puerto Rico's governor announced Tuesday that a federal control board reached a key deal that would reduce the U.S. territory's overall debt by nearly 80 percent, but that his administration is rejecting it because it would require cuts to the island's crumbling public pension system."  MORE >>

NBC News

Provisions in Budget Reconciliation Bill Would Affect Single-Employer and Multiemployer Pension Plans

"This In Focus describes ... provisions of the Butch Lewis Emergency Pension Plan Relief Act of 2021 ... A separate In Focus ... details Section 9704 in Subtitle H.... [1] Temporary delay of designation of multiemployer plans as in endangered, critical, or critical and declining status.... [2] Temporary extension of the funding improvement and rehabilitation periods for multiemployer plans in critical and endangered status for 2020 or 2021.... [3] Adjustments to funding standard account rules.... [4] Extended amortization for single employer plans.... [5] Modification of special rules for minimum funding standards for community newspaper plans.... [6] Cost of living adjustment freeze." [IF 11766, Feb. 23, 2021]  MORE >>

Congressional Research Service [CRS]

Bill Would Provide Special Financial Assistance to Multiemployer Plans

"Section 9704 [of the Butch Lewis Emergency Pension Plan Relief Act of 2021] would establish a fund within the PBGC and appropriate amounts as necessary to provide special financial assistance to certain multiemployer DB plans. The special financial assistance would not have to be repaid." [IF11765, Feb. 23, 2021]  MORE >>

Congressional Research Service [CRS]

What's on the Horizon for ERISA Fiduciaries Under a Biden DOL?

"[1] A reexamination of ESG ... [2] A possible review of new proxy voting rules ... [3] Continuing focus on the fiduciary rule and nondiscretionary recommendations ... [4] Increased support for state and local retirement savings efforts ... [5] Continued support for Pooled Employer Plans ... [6] Disclosures -- Form 5500 and service provider fee disclosures ... [6] Robust enforcement efforts."  MORE >>

Morgan Lewis


Why the 401(k) Fiduciary Can No Longer Remain Apathetic Concerning PEPs

"The ability to offer open 401k PEPs presents a game-changing advantage to all those involved, from service provider to plan sponsor to plan participant.... Just like any other alternative, it's critical the fiduciary embrace the positives and negatives of all options, and the PEP is certainly a viable option."  MORE >>

Fiduciary News; free registration required

Benefits in General

[Official Guidance]

Text of IRS Disaster Relief Notice 2021-02: Texas Severe Winter Storm Victims

"Victims of this month's winter storms in Texas will have until June 15, 2021, to file various individual and business tax returns and make tax payments ... [T]he IRS is providing this relief to the entire state of Texas.... The tax relief postpones various tax filing and payment deadlines that occurred starting on February 11."  MORE >>

Internal Revenue Service [IRS]

District Court Denies Dismissal for Failure to Exhaust Administrative Remedies; Highlights Importance of Communication About Appeal Procedures

"The court explained how Ferguson's attorney asked the Plan Administrator to explain in writing whether there was a grievance policy, and he did not respond to that request.... The court found that Ferguson and McClinton did not have to appeal the denial of their administrative breach of fiduciary claim for two reasons: [1] Section 8.7 states that they 'may appeal;' and [2] requiring them to appeal would be a futile exercise because the Retirement Committee already decided Drake's appeal which involves the same claims and sought-after remedies." [Ferguson v. BBVA Compass Bancshares, Inc., No. 19-1135 (N.D. Ala. Feb. 19, 2021)]  MORE >>

Roberts Disability Law

In Memoriam: William R. Whitehurst

"He practiced law for 35 years with Womble Bond Dickinson until he was forced to retire due to health reasons. At the time of his retirement, he was the managing partner of the firm's Winston-Salem office and a member of its Firm Management Committee. While practicing law, he was recognized regularly for excellence in corporate, employee benefits, and tax law by Best Lawyers in America, and he was named as the Triad's Lawyer of the Year multiple times for employee benefits law."  MORE >>

Winston-Salem Journal

Executive Compensation and Nonqualified Plans

First Circuit Finds Triable Issues of Fact in Dispute Over Terms of Executive's Release Agreement

"The dispute centers on whether the former executive is entitled to severance payments equal to $680,000 per month for 16 months ($10,880,000) or $680,000 in total. The First Circuit found that there were triable issues of fact regarding whether one or both parties made mistakes in preparing the release agreement." [Dahua Technology USA Inc. v. Zhang, Nos. 20-1107, 20-1338 (1st Cir. Feb. 17, 2021)]  MORE >>

Thomson Reuters Practical Law

Employee Benefits Jobs

View job as Manager/Supervisor of Benefits and Payroll Compensation
for Virginia Farm Bureau View job as Manager/Supervisor of Benefits and Payroll Compensation
for Virginia Farm Bureau

Manager/Supervisor of Benefits and Payroll Compensation

Virginia Farm Bureau

Richmond VA

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for Pension Rights Center View job as Legal Director
for Pension Rights Center

Legal Director

Pension Rights Center

Telecommute / Washington DC

View job as Compliance Consultant
for SMA Services, Inc.

Compliance Consultant

SMA Services, Inc.


View job as Senior Legal Content Specialist- Benefits Law
for Bloomberg Industry Group

Senior Legal Content Specialist- Benefits Law

Bloomberg Industry Group

Arlington VA

Selected New Discussions

Spinning Off from a Multiple Employer Plan: Do the Successor Plan Rules Apply?

"The employer was part of a PEO's Multiple Employer Plan and has spun off into its own 401(k) plan. Is the new plan considered a successor plan, and therefore cannot use the use the 3% Prior Year average available for the first plan year? Or is the new plan considered a new plan?"

BenefitsLink Message Boards

Forced Asset Transfers to Acquiring Company's Retirement Plan

"Has anyone heard of forced rollovers for all participants from one employer to another if the employers were unrelated but there was an asset purchase involved? Again, not a transfer, but a mass rollover."

BenefitsLink Message Boards

Press Releases

Centivo Expands Its Health Plan Into Connecticut


Court Restores More Than $42k to Employee Benefit Plan of Defunct Detroit Dental Services Provider After U.S. DOL Complaint

Employee Benefits Security Administration [EBSA], U.S. Department of Labor

Newly Posted Webcasts and Conferences

Retirement Plan Participant Apps: Trends and Best Practices

March 9, 2021 WEBCAST

Corporate Insight

Peeling Back the Layers of the Consolidated Appropriations Act (CAA)

March 9, 2021 WEBCAST


Annual Legal & Regulatory Update

March 11, 2021 WEBCAST

Worldwide Employee Benefits Network [WEB] - Northeast Ohio Chapter

Incorporating Restricted Stock Units in Long-Term Incentive Compensation Plans

March 17, 2021 WEBCAST


Recommendations for Plan Sponsors, Fiduciaries, and Service Providers From a Plaintiff’s Litigation Perspective

March 18, 2021 WEBCAST

Western Pension & Benefits Council - Orange County Chapter

Plan Freezing and Terminations

March 24, 2021 WEBCAST

American Society of Pension Professionals & Actuaries [ASPPA]

Last Issue's Most Popular Items

Working Paper on State and Local Pensions: The Case for Fundamental Reforms (PDF)

Office of the Assistant Secretary for Policy, U.S. Department of Labor [DOL]

Making Sure It Hurts: Increased Penalties for ERISA Violations

McDermott Will & Emery

Cybersecurity Is a Plan Sponsor's Obligation

American Retirement Association [ARA]

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

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