(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:

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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.

DC Plans Offer Advantages Over DB Plans

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.’”

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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.”

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