Unwrapping Compliance on Gift-Giving and Donations

Whether it’s World Series tickets or a luncheon, are these gifts compliant with government and company rules concerning retirement plan sponsors and providers?

Compliance matters for retirement plan sponsors don’t stop at excessive investment fees or poorly performing funds, they extend to rules on gifts and donations, too.

Questions concerning gifts and donations among plan sponsors and providers is often a murky subject, filled with open-ended queries both parties must fully understand themselves. What constitutes a gift? What appropriate spending or price limits can employers and providers offer, and what rules are to be understood prior to gifting or donating?

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Stephen Rosenberg, partner at Wagner Law Group, streamlines these questions into one answer: the act of gift giving, donations or contributions cannot signal favoritism or include conflicts of interest.

“You can have lunch with [clients or firms], but you really can’t allow it to look like any linkage,” he clarifies. “You have to ask yourself, would you be embarrassed if this showed up in the front-page tomorrow morning?”

In the plan sponsor space, conflicts with gift giving and donations generally occur when employers are selecting providers, says Rosenberg. “Plan sponsors have to think of various vendors for the plan prudently,” he says. “It can’t be based on gifts or anything that has the appearance of gifts.” Should employers select vendors based on this conflict of interest, they’re breaching their fiduciary duties and run the risk of a lawsuit.

For those in the vendor capacity—recordkeepers and registered financial advisers—the Securities and Exchange Commission (SEC) and FINRA have implemented stricter regulations on both giving and receiving. The SEC’s Compliance Program Rule for one, requires firms to implement written policies and procedures reasonably designed to prevent violations to the Advisers Act, says Jack Rader, partner at ACA Compliance Group.

“Under this rule, firms will adopt a policy outlining restrictions and also imposing certain guidelines on employees,” he adds. “In many cases this involves reporting and pre-clearing gifts and entertainment.”

Providers must check in with their compliance department prior to gift-giving, in order to pre-clear any entertainment or donations, whether that includes season tickets to a sports game or holiday gifts.

Gifts to and from advisers

Additionally, many financial firm policies will restrict or require disclosures on offering or receiving gifts. Before an adviser can give or take a gift, he will have to report it to the firm’s compliance department to ensure it is reported and approved. Broker/dealers are dealt with specific, stricter requirements regarding pay-to-play restrictions that impact services to government entities, says Francois Cooke, managing director at ACA Compliance Group. Pay-to-play is the act of exchanging money or monetary goods for services. Under FINRA 2030, investment advisers are prohibited from providing investment advice to government entities for two years after the firm, or a covered associate, make a contribution to that entity.

“This becomes more serious under the topic of pay-to-play, which limits the amount of money that a financial adviser can contribute to a government official or political party,” Cooke says.

When it comes down to specific prices, under FINRA 3220, advisers cannot accept or offer gifts exceeding a set $100 limit. The rule states, “No member or person associated with a member shall, directly or indirectly, give or permit to be given anything of value, including gratuities, in excess of one hundred dollars per individual per year to any person, principal, proprietor, employee, agent or representative of another person where such payment or gratuity is in relation to the business of the employer of the recipient of the payment or gratuity. A gift of any kind is considered a gratuity.”

Should advisers receive or provide gifts surpassing $100, they may have to return it, says Cooke. Similar to employers, violating these rules opens advisers to ERISA [Employee Retirement Income Security Act] lawsuits, deficiency letters, or even fines.

“Risks may include anything from a deficiency letter, to not being able to offer certain types of products and services, to being fined,” says Cooke. “In terms of fines, you’re talking about anywhere between $5,000, to $20,000, to $40,000.”

Punishments and lawsuits send a message

Several lawsuits surrounding pay-to-play and gift-giving in the past years have seen firms harshening their stances on contributing and receiving. Navnoor Kang from the New York State Common Retirement Fund is currently serving 21 months in prison for fraud charges involving a pay-to-play scheme. Earlier in the year, Fidelity faced a third lawsuit alleging the company collected “secret kickback payments” from mutual fund providers on its recordkeeping platform. In September, Fidelity was involved in another ERISA lawsuit for allegedly donating millions of dollars to the Massachusetts Institute of Technology (MIT), after the university allegedly allowed the firm to offer high-fee investment funds in the retirement plan.

Now, more firms are moving towards a restrictive approach, say Rader and Cooke. “This has resulted in firms being more conservative,” says Cooke.

Improving a Retirement Plan Committee Through Diversity

Today’s workforces are becoming more diverse both generationally and culturally, and retirement plan committees should match this trend to add unique perspectives to plan decisions.

“In today’s environment of increased litigation and plan design innovation, having a highly effective retirement plan committee has never been so important,” says an article in the latest edition of next, Nuveen’s quarterly retirement newsletter.

The article suggests that today’s workforces are becoming more diverse both generationally and culturally, and as a result, retirement plan committees must match this trend. Diversity comes in many forms. Gender, race, religion, age, culture, socioeconomic background, education and functional expertise all contribute to adding unique perspectives to plan decisions, according to the article.

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A paper released by Vanguard in 2014—although about investment committees—noted that socially diverse committees may sometimes be able to work more quickly and efficiently. And, even though committees with information-processing diversity may take longer to reach a consensus, the multiple viewpoints can foster better decision making skills and more creative solutions. Having a more diverse committee, with members possessing differing viewpoints, may also lead to the development of better conflict resolution skills, the paper says.

Brendan McCarthy, national sales director, DCIO, Nuveen, based in Boston, says it is important first that retirement plan sponsors fully understand their fiduciary responsibilities and their risks as fiduciaries. Once they understand those, they need to build a highly effective plan committee, which includes the right number of members and the right demographics represented.

“Committees will have representatives from HR, finance and legal departments, but it is important to have diversity in the committee representative of the retirement plan participants. A diverse committee will have better governance practices,” McCarthy says.

He adds that a 2016 McKinsey study found that a team is 157% more likely to understand its consumers when at least one member is from their same demographic group. With retirement plan committees, the consumers are plan participants.

Perspective and Understanding 

Gordon Tewell, principal of Innovest, in Denver, says traditionally, retirement plan committees were comprised of C-level employees from HR and Finance departments, and mostly representative of older generations, but now there are more members of younger generations in the workforce.

“If committee members are all C-level, highly paid, older employees, the won’t understand the pain of participants who live paycheck-to-paycheck and what it means to be an employee who wants to be in the plan but can’t defer or defer at the level he’d like to defer,” Tewell says.

He adds that a pure C-suite committee is also the most challenging to work with as a consultant. “They are so busy, and we want to meet regularly,” he says.

“If a large portion of the workforce is Millennials, plan sponsors will want to have at least one Millennial on the committee who will better understand that demographic group’s saving needs,” McCarthy says.

He points out that it’s hard for a committee of all 50-year-old, white males to understand how Millennials or different races view their retirement savings needs and what appeals to them. Someone from those demographics on the committee will be able to inform. “They can especially help with how different demographics view education and communication, which is usually designed or approved by the retirement plan committee,” McCarthy says.

According to Tewell, Innovest sees good diversity on committees. “We do a lot of work in the governmental market, and they look for diversity,” he explains. Tewell sees active employees and retirees, males and females, and executives as well as staff represented.

McCarthy suggests that when plan sponsors look for people to fulfill roles on the retirement plan committee, they look at the biggest demographics in the workforce. It doesn’t matter if they pull from management or first line workers.

“Picking the right people varies by organization,” Tewell says. “While there are committees where we see bottom line involvement, plan sponsors may also use these folks for an advisory type of committee, in which they are not fiduciaries or decision makers, just a group that has interaction with the committee that runs the plan.”

Engagement Remains Critical

Tewell adds that plan sponsors want committee members to be engaged, and they need lots of education about what their roles will be and how important it is to be on the committee. He says education is cumulative; members learn things with every meeting. However, they need upfront education about fiduciary responsibilities. They also need education around practical processes.

“Committee members have duties of loyalty and prudence, but they need a practical approach for how to fulfill those duties—how to make the decisions they need to make,” Tewell says. And, even though there is diversity in the committee, each member should understand they are not representing a constituency, but all groups.

According to McCarthy, the right number of committee members is contingent on the company itself. “In general, there should be an odd number to make it less likely to have tie decisions,” he says. “And having more than 10 can get unruly.” Plan sponsors should consider the size of the company, McCarthy suggests, as well as the number of locations and how many times the committee will meet. “We usually see seven to 10 committee members,” he says.

Tewell says, “We don’t like to work with committees of less than five or much more than nine members. In smaller committees, the members representing diverse groups may not get a majority vote, but in larger committees, they will have more input.”

According to Tewell, diversity in retirement plan committees is a timely topic, as clients bring it up on a regular basis.

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