(b)lines Ask the Experts – Which States Have Fiduciary Laws for 403(b)s?
March 4, 2014
(PLANSPONSOR (b)lines) – “I realize that fiduciary responsibility is
quite clear in 403(b) plans that are subject to the Employee Retirement Income
Security Act (ERISA).
“But what about plans
that are not subject to ERISA, such as those for public school districts and
churches? I hear that some states have fiduciary laws of their own, but which
states and how many?”
Michael A. Webb, vice
president, Retirement Practice, Cammack Retirement Group, answers:
This
is an excellent question, but unfortunately one for which there is no good
answer. The reason is the issue of state fiduciary law is twofold: there is the
question of a) whether such law exists in each state and b) whether such law
applies to 403(b) plans that are not subject to ERISA. Thus, in order to
respond to your question, one would have to research a) the laws in all 50
states to locate any fiduciary law, and b) research the applicability of such
law, including all relevant state court cases dealing with such law, to 403(b)
plans. Given the combined length of all state statutes, and the myriad of court
cases, this would truly be a tremendous undertaking!
Never
mind that state fiduciary laws, when they exist in a fashion that COULD
possibly apply to 403(b) plans, often are written in the context of a trust or
estate, and, as you may be aware, trusts are rarely used in 403(b) plans. Thus,
it becomes a matter of how a particular law, or a judge applying such law,
would define a trust in this context. Again, multiply that interpretation by
other potential interpretations in all 50 states, and you can see how this
becomes an impossible task.
Thus,
the Experts recommend, if you are a non-ERISA plan in a particular state
(keeping in mind it is possible that other state laws can apply to the plan
sponsor as well depending on where active/terminated/retired plan participants
reside), you should seek the advice of benefits counsel well-versed in such
matters to determine the possible applicability of state fiduciary law.
NOTE:
This feature is to provide general information only, does not constitute
legal advice, and cannot be used or substituted for legal or tax advice.
March
3, 2014 (PLANSPONSOR.com) – Employers favor defined contribution (DC)
retirement plans over defined benefit (DB) plans for reasons such as cost, predictability and simplicity, says a recent analysis by Russell
Investments.
“In theory, a DC plan can cost the plan sponsor any amount
(subject to IRS limits), but in practice, contribution levels are set to make DC
plans cheaper for the sponsor,” Bob Collie, chief research strategist at Russell
Investments, tells PLANSPONSOR. “On predictability, the DB plan cost to the
sponsor is highly variable and unpredictable. One reason so much information
needs to be supplied for DB plans is to allow investors to assess the possible
impact on future company results. DC plan costs, by contrast, are stable and
predictable.”
The Seattle-based Collie continues, “In terms of simplicity,
DC plans are becoming more complex to run now that they have become the primary
vehicle for private sector retirement and the regulatory spotlight has been
turned on them. But they still remain far simpler to administer and manage,
from a public disclosure standpoint, than a DB plan. For example, there’s no
need to qualify comments about costs with statements like ‘depending on whether
you mean true economic or accounting or contribution cost.’”
However, while the greater simplicity of DC plan
administration is a benefit to plan sponsors, it should not deter them from
making efforts to improve their plan, says Josh Cohen, managing director and head
of institutional defined contribution business at Russell Investments.
“Today, the vast majority of American workers are completely
reliant on their DC plans, plus Social Security, for retirement,” Cohen tells PLANSPONSOR. “This number
will continue to rise. Two 2014 PBGC [Pension Benefit Guaranty Corporation] premium
increases will lead to accelerated growth in plan size through 2016 as plan
sponsors move to fully fund existing pensions and shift toward DC plans for new
participants.”
“More than ever, this means that DC plans stand
as the primary retirement savings vehicle for American workers. Yet plans face
challenges, including insufficient participant saving rates, inadequate
participation levels across the work force, and improper asset allocation
selections,” says the Chicago-based Cohen. “These issues have already fueled talk of a retirement crisis, the
Obama administration’s introduction of ‘myRA’ bonds, and the proposal of a few
other pieces of legislation. Without the introduction of some straightforward
plan improvements, including auto-enrollment, auto-escalation, and the shifting
of assets into default portfolios, the drumbeat of intervention will only grow
louder, and sponsors may find themselves relinquishing control of plans
entirely.”
Plan sponsors can improve DC plan through a few clear and practical
steps, explains Cohen.
First, he says, practical enhancements including auto-enrollment,
auto-escalation and re-enrollment can help improve retirement outcomes for
participants. “Auto-enrollment gets participants into the plan, auto-escalation
can be used to get them to an appropriate savings rate, and re-enrollment into
target date funds helps guide participants with poorly constructed portfolios
into properly constructed portfolios. Auto features are a great way for plan sponsors to address poor
participant investment and savings behavior.”
Second, Cohen says plan sponsors can move to offer a streamlined and
simplified menu of fund options to plan participants. In some cases, this may
mean unbundling investments from plan recordkeeping services or offering custom-built
funds for participants. Cohen also points out that, for participants, selecting the right investment
strategy is no easy task. The key for sponsors to ensure positive outcomes is to design an understandable menu that
guides participants toward making appropriate choices.
Third, Cohen says, plan sponsors should work with their recordkeepers
to make the DC plan focused on retirement income, not just asset accumulation. This means providing
participants with statements that illustrate retirement
income goals and determine if participants are on track to meet that goal so that they
can better understand retirement readiness and set the right savings
rate. “Participants who know where they stand in terms of their retirement
readiness can make better decisions to improve their outcomes,” he says.
Cohen concludes that retirement plan excellence
does not happen by accident. “It takes a process starting with the goal in
mind. Taking these steps can move a plan from average to excellent.”