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Retirement Plans Newsletter

August 11, 2025

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[Official Guidance]

Text of DOL Withdrawal of Direct Final Rule Removing Definition of 'Plan Assets' -- Insurance Company General Accounts

"Due to the receipt of significant adverse comments, the [DOL] is withdrawing the July 1, 2025 direct final rule ... [e]ffective August 11, 2025[.]"  MORE >>

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

[Official Guidance]

Text of DOL Withdrawal of Direct Final Rule Removing Regs for Selection of Annuity Providers-Safe Harbor for Individual Account Plans

"Due to the receipt of significant adverse comments, the [DOL] is withdrawing the July 1, 2025 direct final rule (DFR) ... [e]ffective August 11, 2025[.]"  MORE >>

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

[Guidance Overview]

Executive Order Directs Regulators to Expand Access to Alternative Assets in 401(k) Plans

"The Executive Order will act as a roadmap to kick off a regulatory process that will likely result in new rules and/or guidance to encourage fiduciaries to consider including alternative assets in DC plans.... [T]he Executive Order, along with recent litigation developments, signals a shift in momentum for DC plan investments -- placing a different balance on the tradeoffs between innovation and investor protection."  MORE >>

Groom Law Group

[Guidance Overview]

Executive Order Opens 401(k)s to Crypto, Private Equity and Real Estate

"While the prior guidance provided a road map for sophisticated plan fiduciaries already investing their defined benefit plans in alternative assets, the new guidance may go farther, including by supporting a plan fiduciary's obtaining exposure to private assets through asset allocation funds or multi-strategy funds ... where one or more fiduciary investment professionals ... oversees the investment program."  MORE >>

Morgan Lewis

[Guidance Overview]

Executive Order to Facilitate Availability of Alternative Assets in Defined Contribution Plans: What Does It Mean?

"The DOL could [1] issue a new Information Letter similar to the 2020 version or simply rescind the 2021 Supplemental Statement.... [2] issue a formal advisory opinion containing the current Administration's view.... [3] issue a class exemption providing legal relief from ERISA's prohibited transaction rules, including permitting DC plan fiduciaries to include proprietary products in their plans.... [4] programmatically file amicus briefs consistent with the Executive Order.... A more ambitious approach would involve promulgating a safe harbor through a new regulation."  MORE >>

Goodwin Procter

Repaying Plan Loans After Separation from Service

"More than half of plans that allow loans do allow participants to continue to repay their loans after separation from service (55 percent). For the 45 percent who do not, the most common response for not allowing it is the additional administrative burden, and the challenges with implementing it and tracking down participants after they leave, though some didn't know that this is an option."  MORE >>

Plan Sponsor Council of America [PSCA]

Inflation and Retirement Confidence: What Employers Can Do to Help

"Offering resources like workshops, webinars, or guides designed to explain how inflation could affect retirement planning can help empower employees to make more informed decisions. Information about how Social Security benefits are adjusted for inflation and how to plan for increasing healthcare costs in retirement can also help."  MORE >>

Savant

PEPs: A Solution for Private Equity-Owned Businesses

"Private equity (PE)-owned businesses face unique challenges, particularly in managing their retirement plans. These organizations must balance the often-competing priorities of their PE owners, employees, and internal strategic objectives. As decision-making structures evolve and companies scale, PE-owned firms require retirement solutions that not only provide consistency for employees but also retain the flexibility to adapt to shifting business goals and objectives."  MORE >>

Willis Towers Watson

Automatic Enrollment in Public Supplemental Retirement Plans (PDF)

"More than half of states prohibit automatic enrollment for public employees, and only about half of the retirement systems that could adopt automatic enrollment provisions have chosen to do so.... Factors explaining lack of interest in automatic enrollment by public employers include increased overhead costs, the perception that governments are already providing an adequate retirement plan, and union concerns about the impact of reduced take-home pay."  MORE >>

TIAA

99% of Public Pensions Underperformed Their Assumed Returns

"From 2001 to 2023 ... 99% of public pension funds failed to meet their average assumed rates of return.... Despite widespread reductions in assumed returns over the last decade ... 86% of public pension plans still assume returns higher than their 23-year average -- which suggests that further downward revisions ... are likely on the horizon, along with more increases in unfunded pension liabilities and catch-up hikes in government pension contributions."  MORE >>

Reason Foundation

[Opinion]

Ninth Circuit Affirms Win for Alternative Asset Strategy in the Intel Case, But Broad Challenges Remain

"[T]he Ninth Circuit effectively provided future plaintiffs with a clear roadmap for filing suits that might be more successful, such as by alleging that a plan invested in 'risky' assets more than comparable plans.... [The recent Executive Order] is most interesting for its recognition of the fact that ERISA litigation has been stifling retirement plan investment innovation. The Order directs DOL to curb such litigation, so that fiduciaries can use their best judgment regarding the investments that best benefit their participants, rather than picking investments to reduce the chance of being sued." [Anderson v. Intel Corp. Inv. Policy Comm., No. 22-16268 (9th Cir. May 22, 2025)]  MORE >>

Encore Fiduciary

[Opinion]

Workers Do Not Need Private Equity in Their 401(k) Plans

"people should invest in things they understand, and private equity is not a transparent investment. Moreover, it takes years for returns to be realized, and participants who leave early will have paid higher fees for nothing. Private equity simply adds unnecessary risk to retirement saving. Further, it is not apparent that private equity produces outstanding returns in retirement plans."  MORE >>

Alicia H. Munnell, in Morningstar

Benefits in General

[Official Guidance]

IRS Disaster Relief Notice WV-2025-04, for Taxpayers Impacted by Severe Storms, Straight-Line Winds, Flooding, Landslides, and Mudslides in West Virginia

"[I]ndividuals and businesses in parts of West Virginia affected by severe storms, straight-line winds, flooding, landslides, and mudslides that began on June 14, 2025 ... now have until Feb. 2, 2026, to file various federal individual and business tax returns and make tax payments.... [I]ndividuals and households residing or having a business in Marion and Ohio counties qualify for tax relief."  MORE >>

Internal Revenue Service [IRS]

Executive Compensation and Nonqualified Plans

Compliance Reminder for Executive Top Hat Plans

"A recent Sixth Circuit Court of Appeals case reminds us that these plans must satisfy unique compliance requirements to continue to remain exempt from such ERISA provisions. This case determined that plan participants did not have a state law fiduciary duty claim because ERISA preempts state laws, provided that the top hat plan complies with certain requirements[.]" [Aldridge v. Regions Bank, No. 24-5603 (6th Cir. Jul. 17, 2025)]  MORE >>

Haynes and Boone, LLP

Employee Benefits Jobs

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Plan Document Consultant

Pension Plan Specialists

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Selected New Discussions

DB Plan 3 Year Average Compensation

"I know that almost all DB plans provide that the 3 highest salary years for the salary average must be consecutive. However, is it allowed to provide for the salary average to be any 3 highest years, even if not consecutive. A bit generous, but for an owner only plan it might be preferred? It appears that if not consecutive the it creates a definitely determinable issue?"

BenefitsLink® Message Boards

Testing of 15 Separate Plans in a Controlled Group

"Holding company has 15 wholly owned subsidiaries which all have separate qualified plans (mostly 401k plans). Does anybody have any tips/tricks for simplifying the process of performing (or avoiding?) coverage (and other?) testing across the controlled group?"

BenefitsLink® Message Boards

Is This a Missed Deferral Opportunity? Controlled Group, $0 Deferral by HCE

"A Solo 401(k) plan is part of a controlled Group. The owner of the company owns 100% of another company. He is not paid through that other company but has 2 employees. The owner is not contributing anything to the Solo 401(k) in 2024, but he did not tell his employees in the other company about the 401(k) Plan and that they are eligible. What would the correction process be? Based on this link, it looks like the correction method is to fund the average deferral rate of participant's group. However, nobody is receiving any contributions in the Solo 401(k) plan. Would there be no Missed Deferral Opportunity in this case?"

BenefitsLink® Message Boards

True Up Contribution Timing for Terminating Plan

"Plan is terminating and the termination date is 07/31/2025. The Plan sponsor wants to do a annual employer match true-up contribution which usually occurs in Jan for the previous year. They calculate the match throughout the year on a pay-check-by paycheck basis. [1] Since the plan is terminating I believe they should calculate and contribute to the plan for the period Jan 01-July 31 it will be for a short plan year correct? [2] Should they wait until next year to do the contribution or can they do the calculation now and contribute?"

BenefitsLink® Message Boards

Press Releases

Essay Contest Honors 401(k) Participants Who Inspire Financial Literacy in the Workplace

Jackson, Grant

Webinars, Podcasts and Conferences
(Retirement Plans / Executive Compensation)

Ethical Issues for ERISA Practitioners 2025: Understanding Current Internal and External Counsel Issues

ON-DEMAND WEBINAR

PLI [Practising Law Institute]

The Evolving World of Forfeitures: The Proposed Regulations and Litigation Updates

August 13, 2025 WEBINAR

TRA [The Retirement Advantage]

Virtual IRA Advanced Institute

September 15, 2025 WEBINAR

Retirement Industry Trust Association [RITA]

Navigating Participant Disclosures and Notices

September 19, 2025 WEBINAR

ASPPA [American Society of Pension Professionals & Actuaries]

Last Issue's Most Popular Items

Executive Order Clears Path for Alternative Assets in 401(k) Plans

Debevoise & Plimpton LLP

New Executive Order Directs Agencies to Facilitate 401(k) Access to Private Equity, Cryptocurrency, and Other Alternative Investment

Winston & Strawn LLP

Employers Can Contribute to Trump Accounts Starting Next July

Mercer

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

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