DOL Holding Off on Enforcing ESG, Proxy Voting Rules

Until the publication of further guidance, the department says it will not enforce either final rule or pursue enforcement actions against any plan fiduciary for failure to comply.

The Department of Labor (DOL)’s Employee Benefits Security Administration (EBSA) announced Wednesday that it will not enforce recently published rules on the use of environmental, social and governance (ESG) investments within tax-qualified retirement plans and proxy voting and shareholder rights.

The DOL said that until it publishes further guidance, it will not enforce either final rule or pursue enforcement actions against any plan fiduciary for failing to comply with them. The DOL said it will update the EBSA website as more information becomes available.

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“These rules have created a perception that fiduciaries are at risk if they include any environmental, social and governance factors in the financial evaluation of plan investments and that they may need to have special justifications for even ordinary exercises of shareholder rights,” says Ali Khawar, principal deputy assistant secretary for EBSA. “We intend to conduct significantly more stakeholder outreach to determine how to craft rules that better recognize the important role that environmental, social and governance integration can play in the evaluation and management of plan investments, while continuing to uphold fundamental fiduciary obligations.”

The DOL published its final rule on retirement plan investing, “Financial Factors in Selecting Plan Investments,” on November 13. The final rule said plan fiduciaries should select investments and investment courses of action based solely on consideration of “pecuniary,” or financial, factors.

The final rule, which no longer explicitly referred to ESG, included some significant changes compared with the DOL’s initial proposal, which would have placed stricter limits on ESG investments within retirement plans.

The DOL published its final rule “Fiduciary Duties Regarding Proxy Voting and Shareholder Rights” on December 16. It addressed obligations of plan fiduciaries under the Employee Retirement Income Security Act (ERISA) when voting proxies and exercising other shareholder rights in connection with plan investments in shares of stock.

A wide range of stakeholders, including asset managers, plan sponsors and consumer groups, questioned whether the two rules properly reflected the scope of fiduciaries’ duties under ERISA to act prudently and solely in the interest of plan participants and beneficiaries. The stakeholders also questioned whether or not the DOL rushed the rulemakings through under the previous administration and failed to adequately consider public comments on the value of ESG in improving long-term investment returns for retirement investors.

The stakeholders told the DOL that the ESG rule was deterring plan sponsors from using ESG in their investment decisions.

The Insured Retirement Institute (IRI) said Wednesday that it supports the DOL’s decision not to enforce the two recently published regulations.

“We strongly support today’s decision by the DOL to temporarily forgo enforcement of the ESG and proxy voting rules,” Jason Berkowitz, IRI chief legal and regulatory affairs officer, said in a statement. “This will provide an opportunity for the department to re-evaluate and possibly review or withdraw them.”

The IRI told the DOL in its comment letters that the new ESG rule was unnecessary and that it would actually impair plan sponsors from considering these factors when building their investment lineups by making it more complicated for sponsors to consider the impact of ESG issues.

Lisa Woll, CEO of US SIF: The Forum for Sustainable and Responsible Investment, also praised the DOL’s decision, saying the two final rules were “hastily finalized.”

The rules “ignored the large body of evidence that environmental, social and governance considerations and proxy voting are suitable for ERISA-governed retirement plans,” she said. “We thank DOL staff for quickly reaching out to stakeholders to understand the impacts of the rules and look forward to continuing to engage with the DOL to ensure that further guidance and rulemaking clearly articulate the suitability of ESG considerations and proxy voting in retirement plans.”

Likewise, Senator Patty Murray, D-Washington, chair of the Senate Health, Education, Labor and Pensions (HELP) Committee, praised the delay in enforcing the two final rules.

“This step is a win for workers, retirees, investors, businesses, communities, the environment—everyone,” the senator said in a statement. “Stopping these rules ensures people investing in their futures are able to make sound decisions to build their financial security while also helping to build a world that is more just, diverse and sustainable.”

Corporate DB Plan Funded Status Improves to Pre-Pandemic Levels

Equity allocations gave some plans a boost, and experts anticipate new legislation will offer relief from expected higher contributions.

Corporate defined benefit (DB) plan funded status improved from 86% at the end of January to 88% at the end of February, according to Insight Investment.

“Through February, discount rates have risen approximately 45 bps [basis points], which has caused the liability to drop approximately 5%. Assets have remained level with the losses in fixed income due to rising rates offset by gains in the return-seeking asset portfolio,” says Kevin McLaughlin, Insight’s head of liability risk management.

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According to River and Mercantile’s “US Pension Briefing – February 2021,” overall, most pension plans should see their funded status improve for the month, particularly those with higher equity allocations. Pension discount rates continued increasing in February and are up almost 0.5% so far this year, which means lower liabilities for pension plan sponsors. Equity market returns were positive across the board, riding on good COVID-19-related news.

“Pension plan funded status continues to improve in 2021 with rates and equities moving in the right directions for plan sponsors. In addition, the Emergency Pension Plan Relief Act of 2021 [EPPRA] continues to be included in the larger stimulus bill that is making its way through Congress,” says Michael Clark, managing director and consulting actuary with River and Mercantile. “If passed, it will provide many plan sponsors substantial flexibility in deciding how much to contribute to their pension plans in the near future. With pressure taken off cash requirements, it’s likely that we’ll see an increase in allocation to equities to help close any funding gaps for some plan sponsors.”

The average funded ratio of corporate DB plans in the S&P 500 improved in February from 87.9% to 91.3%, according to Northern Trust Asset Management (NTAM). Positive returns in equities along with the increase in discount rates led to the higher funded ratio. Global equity market returns were up approximately 2.3% during the month. Average discount rates increased from 2.32% to 2.61% during the month, leading to lower liabilities.

“Strong equity markets combined with this increase in discount rates have taken average funded ratios to above pre-pandemic levels,” notes Jessica Hart, head of the OCIO [outsourced chief investment officer] retirement practice at NTAM.

Ned McGuire, managing director at Wilshire, also points out that, “February’s liability value decrease was the largest since March 2020 when the markets first reacted to the COVID-19 pandemic.”

Wilshire’s estimate of funded status for S&P 500 companies shows the aggregate funded ratio increased by an estimated 3 percentage points month-over-month in February to end the month at 90.8%. The monthly change in funding resulted from a 4.4 percentage point decrease in liability values partially offset by a 1.1 percentage point decrease in asset values. The aggregate funded ratio is estimated to have increased by 4.0 and 9.2 percentage points year-to-date and over the trailing 12 months, respectively.

According to the Aon Pension Risk Tracker, the aggregate funded ratio for DB plans in the S&P 500 has increased from 91.5% to 95.1%, the highest on record since Aon began tracking the funded ratio for the S&P 500 in 2011. The funded status deficit decreased by $91 billion, which was driven by liability decreases of $138 billion, partially offset by asset decreases of $47 billion year-to-date.

October Three also says pension finance enjoyed its best month in more than three years in February. Both model plans it tracks gained ground last month: Plan A gained 5% and is now up more than 7% for the year, while the more conservative Plan B added 1% and is now up more than 1% through the first two months of 2021. Plan A is a traditional plan (duration 12 at 5.5%) with a 60/40 asset allocation, while Plan B is a largely retired plan (duration 9 at 5.5%) with a 20/80 allocation and a greater emphasis on corporate and long-duration bonds.

NEPC’s February 2021 Pension Monitor says that, driven by an increase in Treasury rates and strong equity returns, the funded status of typical corporate pension plans improved in February. It says total-return plans outpaced liability-driven investing (LDI)-focused plans that hedge more interest-rate risk, as losses from fixed-income assets eroded gains from equities. While credit spreads remained mostly flat for the month, the Treasury curve increased and steepened, reducing plan liabilities. Based on NEPC’s hypothetical open- and frozen-pension plans, the funded status of the total-return plan rose 5.2%, while the LDI-focused plan increased 1.9%.

Legal & General Investment Management (LGIM) America estimates that pension funding ratios increased approximately 3.5% throughout February, with the impact primarily due to strong equity performance and higher liability discount rates, according to its Pension Solutions’ Monitor. Its calculations indicate the discount rate’s Treasury component increased 38 bps while the credit component tightened 8 bps, resulting in a net increase of 30 bps. Overall, liabilities for the average plan decreased 3.2%, while plan assets with a traditional 60/40 asset allocation rose approximately 0.8%.

Several firms noted that President Joe Biden’s $1.9 trillion stimulus package would extend DB plan funding relief, saving plans from increases in required contributions. Brian Donohue, a partner at October Three Consulting, says, “This legislation will be crucial to pension decisionmaking in the months ahead.”

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