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Retirement Plans Newsletter

November 15, 2023

5 New Job Opportunities 5 New Job Opportunities


[Guidance Overview]

DOL Denies Request to Extend Fiduciary Rule Comment Period, as House Moves to Block Rule

"[A] request to the DOL by several trade organizations to extend the comment period by another 60 days was denied. As such, comments on the proposed regulation are still due by Jan. 2, 2024, as originally proposed. In addition, the response letter to the joint trades indicates that the public hearing will take place starting on Dec. 12, 2023 -- 39 days from the date the proposal was published in the Federal Register."  MORE >>

American Retirement Association [ARA]


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[Guidance Overview]

Alert (High Risk Issue) icon DOL Provides Guidance on Racial Equity Plan Supplier Program But Questions Remain

"[Advisory Opinion 2023-01A] did not address the potential impact of [recent US Supreme Court decisions] ... which held that race-conscious admissions policies ... violate the Equal Protection Clause of the Fourteenth Amendment.... [In] early August 2023, the American Alliance for Equal Rights filed a race discrimination lawsuit ... [alleging that an] asset manager's grant program, which sought to support Black female business owners, violates Section 1981 [of the Civil Rights Act of 1866 (which prohibits discrimination in contracting)]." [American Alliance for Equal Rights v. Fearless Fund, No. 23-3424 (N.D. Ga. complaint filed Aug. 2, 2023; 11th Cir. No. 23-13138 injunction granted Sep. 30, 2023)]  MORE >>

Morgan Lewis

[Guidance Overview]

DOL Again Enters the Investment Advice Fray with Proposed Retirement Security Rule

"In expanding the types of recommendations covered, the Proposed Rule significantly alters certain requirements of the Five-Part Test that, in the DOL's view, have resulted in investment professionals avoiding fiduciary status in situations in which retirement investors would reasonably expect them to act in their best interests."  MORE >>

Thompson Hine

[Guidance Overview]

SECURE 2.0 Encourages Defined Contribution Annuity Distribution Options

"An increasing number of employers ... are exploring whether to offer annuity payment options within their defined contribution plans.... SECURE 2.0 did not mandate that defined contribution plans include a lifetime annuity distribution option, but the law nevertheless included incremental enhancements to three annuity distribution rules that might make defined contribution annuity distribution more attractive."  MORE >>

Foley & Lardner LLP

End-of-Year 401(k) Checklist for Plan Sponsors and HR Professionals

"[1] Notify and remind your employees about their retirement benefits ... [2] Audit employee 401(k) information ... [3] Send required 401(k) plan information ... [4] Make sure you've deposited 401(k) contributions by the required deadlines ... [5] Collect your plan's documents and records ... [6] Consider profit sharing ... [7] Review plan fees you and your employees have paid this year ... [8] Review your retirement plan to see if it still fits your current needs."  MORE >>


DOL's 'Lost and Found' Database Gets a Boost

"The SECURE 2.0 Act's creation of an online searchable lost and found database at the [DOL] to help American workers find lost retirement savings benefits has moved one step closer to becoming a reality. Image: The Technology Modernization Fund ... announced that it is investing nearly $3.5 million at the DOL to help establish the online registry."  MORE >>

American Retirement Association [ARA]

Budget Proposal Would Cut EBSA Budget, Roll Back ESG Rule

"The base text of the DOL funding bill [HR 5894] would prevent the DOL from implementing the ESG fiduciary final rule ... Republicans have also proposed amendments ... that would block the new retirement security proposal that redefines the terms of being a fiduciary adviser ... The budget proposal would allocate $152.88 million to EBSA ... EBSA was funded with $233.87 million in 2023."  MORE >>

PLANSPONSOR; free registration may be required

Ranking Member Cassidy Seeks Commitment from Teamsters President to Return Taxpayer Funds Wrongfully Obtained in Pension Bailout

"Earlier this month, the [PBGC] Office of Inspector General (OIG) published a report disclosing that the PBGC overpaid the Central States fund by $127 million after the plan included 3,479 dead participants in its bailout request ... In a letter sent to [Teamsters President Sean O'Brien], Cassidy urged the Central States Pension Fund to fulfill their commitment to return the $127 million overpayment to American taxpayers and requested information as to how the union will prevent this kind of poor mismanagement in the future."  MORE >>

Committee on Health, Education, Labor and Pensions, U.S. Senate

Public Pension Funding Index, November 2023

"A third straight month of declines in financial markets during October 2023 lowered the estimated funded status of the 100 largest U.S. public pension plans from 73.2% as of September 30, 2023, to 71.4% as of October 31, 2023 ... During October 2023, the deficit between the estimated plan assets and liabilities increased from $1.636 trillion at the beginning of the month to $1.750 trillion at the end of the month."  MORE >>



IBM Makes Retirement News: What They Did and What It Means for You

"[IBM's frozen defined benefit plan] is overfunded for minimum funding purposes and likely has enough assets for IBM to terminate the plan ... Instead, the company has moved in the other direction.... The 6% of pay maximum [401(k) plan] employer contribution ... is being eliminated. In its place, IBM is giving ... an ongoing 5% pay credit in a cash balance [plan] account.... IBM may very well have set the stage for the next step in the evolution of the private sector retirement system in the U.S."  MORE >>

October Three Consulting

Executive Compensation and Nonqualified Plans

[Guidance Overview]

SEC's Final 'Clawback' Rule May Pose Section 409A Issues for Nonqualified Plan Sponsors

"At first glance, an executive's nonqualified plan benefit may seem like a tempting source of funds to satisfy his or her clawback obligation.... [C]ompanies should proceed with caution before attempting to satisfy a clawback obligation by deducting the amount from an executive's nonqualified plan benefit (or any other amount subject to Code section 409A). However, there are situations where such a clawback is permissible."  MORE >>

Groom Law Group

Employee Benefits Jobs

View job as Defined Benefit Plan Consultant
            for Planned Retirement Consultants & Administrators, LLC

Defined Benefit Plan Consultant

Planned Retirement Consultants & Administrators, LLC

Remote / Ridgewood NJ

View job as Defined Benefit Plan Consultant for Planned Retirement Consultants & Administrators, LLC

View job as 401k & Defined Contribution Plan Consultant
            for Planned Retirement Consultant & Administrators, LLC

401k & Defined Contribution Plan Consultant

Planned Retirement Consultant & Administrators, LLC

Remote / Ridgewood NJ

View job as 401k & Defined Contribution Plan Consultant for Planned Retirement Consultant & Administrators, LLC

View job as Participant Services Associate
            for July Business Services

Participant Services Associate

July Business Services


View job as Participant Services Associate for July Business Services

View job as Retirement Plan Consultant
            for July Business Services

Retirement Plan Consultant

July Business Services


View job as Retirement Plan Consultant for July Business Services

View job as Client Service Manager
            for July Business Services

Client Service Manager

July Business Services


View job as Client Service Manager for July Business Services

Selected New Discussions

IRS Letter Correcting EIN Number

"Two clients of ours have received LTR 1072C from the IRS for the plan year ended 12/31/21. These read similarly: 'Thank you for your 5500-EZ. Your correct EIN is xx-xxxxxxx. You should use this number when filing Form 5500-series returns or Form 5558....' Does anything need to be done for the year ended 12/31/21? Does anything need to be done for the year ended 12/31/22, which has already been filed with the same EIN as for 12/31/21?"

BenefitsLink Message Boards

Mid-Year Replacement of Non-SH 401(k) with SIMPLE?

"My client has a non-safe harbor 401k plan. They want to terminate it and start a SIMPLE IRA. I know SECURE 2.0 allows a SIMPLE to be terminated mid year and start a 401k plan, but is the reverse true? Can a non-safe harbor plan be terminated mid year and start a SIMPLE mid year? Is a 60 day notice of termination required? I have a Q&A from TAG saying that an advance notice of plan termination is not required (even if the plan is a safe harbor 401k plan.) Is that true?"

BenefitsLink Message Boards

Mid-Year Replacement of SIMPLE with SH 401(k): Notice Required?

"In light of the new SECURE 2.0 rules for mid-year replacement of a SIMPLE IRA program with an appropriate 401(k) w/ safe harbor -- is 60 days notice to participants required? Typically employers would have to notify folks by Nov 1 that the SIMPLE would not be continuing for the upcoming year. Since we are past Nov. 1, do folks think notice now is sufficient? Assuming that effective Jan 1 there is an allowed replacement (401(k) SH as provided in SECURE 2.0), is notice now enough? 30 days? Something else?"

BenefitsLink Message Boards

Press Releases

Seasoned Litigator Joins The Wagner Law Group

The Wagner Law Group P.C.

Trucker Huss Director Clarissa Kang Inducted as a Fellow of the American College of Employee Benefits Counsel

Trucker Huss

Employee Fiduciary Launches a Future Value of 401(k) Fees Calculator to Emphasize the Impact of High 401(k) Fees on Retirement Savers' Balances

Employee Fiduciary, LLC

Leading Atlanta-Based Benefits Companies Join IMA Financial Group

IMA Financial Group

Federal Judge Appoints Independent Fiduciary to Distribute $103K in Assets to Participants in Defunct Ohio Irish Pubs' Retirement Plan

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

Health-E Commerce partners® with ŌURA to make Oura Ring available on FSA Store® and HSA Store®

Health-E Commerce

Webcasts and Conferences
(Retirement Plans / Executive Compensation)

The New Fiduciary Proposal: PTE 84-24 and the Significant Disclosure Obligations


Faegre Drinker

Last Issue's Most Popular Items

Common Mistakes in Communications to Employees About Benefits


Recent ESOP Developments

The Wagner Law Group

Text of IRS Notice 2023-76: Weighted Average Interest Rates, Yield Curves, and Segment Rates for November 2023 (PDF)

Internal Revenue Service [IRS]

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

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