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Retirement Plans Newsletter

May 5, 2022

3 New Job Opportunities 3 New Job Opportunities


[Guidance Overview]

SEC Marketing Rule Insights

"The Marketing Rule represents a substantial overhaul of the SEC's now-defunct advertising and cash solicitation rues. Based on a firm's current practices, compliance with the Marketing Rule can be a significant process -- firms need to make sure they are on track for full compliance by November 4, 2022."  MORE >>

The Wagner Law Group

Are Brokerage Windows an Effective Way to Limit Fiduciary Risk After Hughes v. Northwestern?

"The question now is when, whether, and how will the DOL or the federal courts develop standards for plan fiduciaries to apply when designing and monitoring individual account plans with brokerage windows.... [F]iduciaries might also step back and consider ... as whether brokerage windows can be designed within ERISA Section 404(c) rules to capture fiduciary protection from losses, whether 404(c) is the best, or only, way to create a fiduciary shield, or whether Code rules could allow for participant investments outside of plan menu choices through rollovers to IRAs."  MORE >>

The Wagner Law Group

Small Employers Curious About PEPs, But Not Yet Ready to Implement

"More than half of smaller employers surveyed by the Secure Retirement Institute -- regardless of whether there is a retirement plan currently in place -- said they are interested in learning more about PEPs ... Sixty-six percent of employers that have a retirement plan have no plans to make changes. Small employers that are avoiding switching to a PEP express concerns about lower levels of support for the company (42%) or lower levels of service for their employees (39%)."  MORE >>

401(k) Specialist

The Most Popular Mutual Funds for 401(k) Retirement Savings

"Americans have $7.3 trillion invested in [401(k) plan] accounts, according to the Investment Company Institute, and there are roughly 60 million active 401(k) participants. BrightScope ... [compiled] this list of the 100 most popular mutual funds in 401(k) plans based on funds' 401(k) assets under management."  MORE >>


Vermont Governor Vetoes Pension Funding Bill; Senate Unanimous in Veto Override

"The third-term Republican governor says it does not contain enough structural change to the system 'to solve the enormous unfunded liability' issues the state currently faces.... [T]he fiscal year 2022 budget contains a one-time general fund appropriation of $200 million in order to pay down unfunded liabilities ... [T]he Senate overrode the veto 30-0, sending the bill to the House for consideration."  MORE >>

Lessons from the 2022 Qualified Plan Fiduciary Summit

"[This] article recaps the key themes from the event and items for plan fiduciaries to consider as we navigate a challenging labor market, an active litigation and regulatory environment, and increased employee needs and expectations. [1] ESG, crypto, and cybersecurity are hot topics.... [2] Supreme Court ruling will be impactful.... [3] Individualized and personalized solutions are the present and the future.... [4] In-plan income is needed, valued, and becoming expected."  MORE >>

Qualified Plan Advisors [QPA]

Empowering America's Financial Journey™ -- Government Sector Study

"The study analyzes the behavior of approximately 1.55 million active state and local defined contribution participants with Empower as the recordkeeper.... Government participants ... are saving an average of 6.4% of their salary in their workplace retirement plan, up from 5.9% two years ago.... About half of government participants utilize professional management.... Engaged government workers have savings rates 90% higher than unengaged participants."  MORE >>

Empower Retirement


U.S. Chamber of Commerce Comment Letter to IRS on Proposed Regs for Multiple Employer Plans (PDF)

"The final regulation should not require all details of the procedures to correct a failure to provide information and a failure to take action be included in the plan document.... In listing the administrative duties, any final regulation should make clear that that the pooled plan provider is not responsible for determining eligibility or severance from service.... The IRS should coordinate [with DOL] its guidance on whether employers [are considered to] have a common interest ... by adopting the [criteria enumerated in the 2019 DOL final regulation on association retirement plans]."  MORE >>

U.S. Chamber of Commerce


Comment Letter to the Federal Retirement Thrift Investment Board on New TSP Recordkeeping System (PDF)

"We strongly oppose the Proposed Rule's: [1] elimination of any notarization requirement for spousal consents; [2] failure to impose any requirements or offer any explanation at all on how spousal consents will be provided, executed, and proven in this online system; and [3] inadequate provisions about how the spousal consent requirement will be enforced, the penalties for violations, and the remedies that will be provided to defrauded spouses."  MORE >>

Pension Rights Center [PRC]; National Women's Law Center; and Women's Institute for a Secure Retirement [WISER]


Why a Pension Lump Sum Option Is Better Than an Annuity Payment

"By accepting a lump sum from the pension, you gain the control over your income assets. Even if the income generated from the lump sum is less than the promised annuity payment from the pension, you gain control over the assets.... [N]ot all pensions have a lump sum option, which means you have no choice but to accept an annuity payment. If that is you, there are a few things to consider before selecting your irrevocable annuity option."  MORE >>


Benefits in General

Sixth Circuit Rejects Arbitration for Proposed Fiduciary Breach Class Action

"While the court stopped short of deciding whether Section 502(a)(2) claims could ever fall within the scope of an arbitration clause in an individual employment agreement, it held that plaintiffs' claims did not fall within the arbitration clauses here. The court reasoned that because such claims 'belong' to the Plan, they cannot be forced into arbitration based on agreements that bind only individual participants.... [T]he court found that, in this case, the agreements established only plaintiffs' consent to arbitration, but not the plan's." [Hawkins v. Cintas Corp., No. 21-3156 (6th Cir. Apr. 27, 2022)]  MORE >>


Executive Compensation and Nonqualified Plans

[Guidance Overview]

Beware of 'Affiliated Group' for Excess Parachute Payments Under Section 280G

"Because partnerships are excluded from coverage under Section 280G, there is a tendency to stop the analysis there.... However ... all members of the same affiliated group as defined in Code Section 1504 ... are treated as a single corporation for several purposes under Section 280G.... [T]his means that one corporate taxed entity in the selling affiliated group can result in making Section 280G applicable to entities and their service providers that would have otherwise been exempt from the Section 280G rules had there been no corporate taxed entity."  MORE >>

Holland & Hart LLP

Employee Benefits Jobs

View job as Employee Benefits Investigator - Recent Graduate (English and/or Spanish)
          for Employee Benefits Security Administration [EBSA] Employee Benefits Investigator - Recent Graduate (English and/or Spanish)

Employee Benefits Security Administration [EBSA]

Remote / San Francisco CA

View job as Employee Benefits Investigator - Recent Graduate (English and/or Spanish)
          for Employee Benefits Security Administration [EBSA]

View job as Employee Benefits Investigator (English and/or Spanish)
          for Employee Benefits Security Administration [EBSA] Employee Benefits Investigator (English and/or Spanish)

Employee Benefits Security Administration [EBSA]

Remote / San Francisco CA

View job as Employee Benefits Investigator (English and/or Spanish)
          for Employee Benefits Security Administration [EBSA]

View job as Pension Plan Administrator
          for The Angell Pension Group, Inc. Pension Plan Administrator

The Angell Pension Group, Inc.


View job as Pension Plan Administrator
          for The Angell Pension Group, Inc.

Selected New Discussions

One Employee in Excluded Class Mistakenly Allowed to Defer

"I have a plan that excludes a class of employees in the plan document but one of the employees of this class was allowed to defer during the plan year. What is the best corrective action? Distribute the deferrals? Or is there anything else that can be done?

Can't fix payroll since this is from last calendar year. There were also a few employees that did not meet any of the eligibility requirements that were allowed to defer. Can we do a retroactive amendment to let them in? If that's OK, would that be an issue with the employee above who is considered excluded?"

BenefitsLink Message Boards

Trust as a Named Beneficiary

"A participant passed away in 2020. The family and employer just notified us in 2022. One of the named beneficiaries is a trust. The claim form states that 'The Trustee of the Trust must certify whether the underlying trust beneficiaries are designated or non-designated beneficiaries as defined by Section 401(1)(9)(E) of the Code. The trustee must provide the certification by October 31st of the year immediately following the participant's death.' Because 2 years already have passed, what's the impact of the trustee not having met that October 31 certification date?"

BenefitsLink Message Boards

Press Releases

Retirement Income Consortium Launches to Address Retirement Security Challenges

Broadridge Financial Solutions, Inc.

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

Engaging Plan Participants to Improve Retirement Readiness

May 12, 2022 WEBCAST

National Institute on Retirement Security [NIRS]

Developments in 401(k) Fee Cases, DOL Cybersecurity Investigations, and Cryptocurrency

May 24, 2022 WEBCAST

Trucker Huss

Last Issue's Most Popular Items

IRS Serves Up a Mortality Triple Shot


Second Circuit to Decide Whether 401(k) Plans Can Be Garnished to Enforce Criminal Restitution Order

Steptoe & Johnson LLP

Text of IRS Proposed Regs: Use of Actuarial Tables in Valuing Annuities, Interests for Life or a Term of Years, and Remainder or Reversionary Interests

Internal Revenue Service [IRS]

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

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