What Advisers Would Like Plan Sponsors to Better Understand

Advisers wish fiduciary responsibilities were more top-of-mind for committees and that sponsors would better define what success means for their plans.

Retirement plan sponsors need to be knowledgeable about their investment lineups and deliver documentation to the Department of Labor (DOL) and IRS on time. Most retirement plan committee members already know this.

However, there are some things that advisers and consultants wish their sponsor clients were better at, or that they prioritized more.

Never miss a story — sign up for PLANSPONSOR newsletters to keep up on the latest retirement plan benefits news.

“The No. 1 thing is being aware of their role as a fiduciary,” says Craig Eissler, wealth adviser with Halbert Hargrove. “Many plan administrators may believe that hiring advisers and third-party administrators [TPAs] will entirely remove them from all liability and decisionmaking.

“The fact of the matter,” Eissler continues, is that plan sponsors “inherently act as stewards [that] create the retirement plan. The investment committee members are charged with overseeing the portfolio, and other administrators are involved in ensuring the plan runs smoothly. Even with the use of service professionals, plan sponsor fiduciaries are still ultimately responsible for showing prudence in the active management of the plan.”

Smarter Automatic Features

Recently, more plans have upped their default deferral rates for automatic enrollment from 3% or 4% to 6%. Some are pairing that with annual automatic escalation of 1% up to ceiling caps of 10% and, in some rare cases, 15%.

Sponsors using automatic features need to be willing to listen to advisers’ recommendations on completely rethinking the deferral formula with the goal of creating better participant outcomes, John Doyle, senior vice president, senior retirement strategist at Capital Group, tells PLANSPONSOR. It starts with plan sponsors accepting the notion that they require some external entity (i.e., the adviser, retirement specialist or consultant) to help them with this process.

“The way to solve the problem is to change the way plans are designed, in such a fashion that plan participants can achieve good outcomes without having to know why,” Doyle says. “I don’t see any evidence that we are any better at this than several years ago.”

Plan design automation needs to be rethought and adjusted to make retirement plan participants more financially secure, Doyle says. Simply put, that means better auto-enrollment and even re-enrollment, he says.

In line with this, David Swallow, managing director, consulting relations and retention at TIAA, hears from advisers that one thing they would like sponsors to better understand is the “importance of the documentation of their actions, as it relates to the plan and the retention of records. How a retirement plan is ultimately judged comes down to process. Documentation supports the process you went through in making your decisions.”

He says sponsors should “spend a little bit more time to understand how important and critical [documentation] is.”

Defining Success and Plan Goals

Another top-line objective for sponsors is defining success, Eissler says. There is sometimes a disconnect between what plan sponsors and advisers think the plan’s priority, or definition of success, should be.

“Plan sponsors typically have their own definition of a successful plan,” Eissler says. “Ideally, success would depend on what objectives an employer has when establishing the plan” and what responsibilities it is willing to take on, he explains.

“They [plan sponsors] typically will prioritize passing annual compliance tests, ease of plan administration, low costs and getting competitive investment returns,” Eissler says. “While these are all desirable outcomes, what often can be overlooked is emphasizing high participation rates and, ultimately, sufficient contributions into the plan to ensure a financially secure retirement for participants. Pertinent employee education and straightforward plan investment options can often help accomplish these priorities.”

A big misconception is that low cost is better for investment options, says Ken Innis, chairman of R.O.W. Group, a wealth transfer firm.

“We have seen the perspective that investing in low-cost index funds leads to higher accumulation and a large pot of money at retirement,” Innis says. “The flip side of that is, we think low-cost investments should be part of a diversified lineup, but they don’t always translate into better performance.”

In putting together an investment lineup, a sponsor needs to work with the plan’s adviser to ask, “‘What is active investment management trying to accomplish?’” Innis says. “We think a combination of them [active and passive investing], even lifetime income options” is the way to go.

R.O.W. is not of the opinion that a 4% drawdown strategy for retirees is appropriate for every participant, he adds. “For 69% of workers, guaranteed money is one of their top goals,” Innis says, which is why R.O.W. thinks lifetime income options should be offered in the plan, even to young workers. This way, younger workers can contribute to the lifetime income options over the course of their careers and not have to go through the difficult decision of whether to place their bets on an annuity when they reach retirement age.

Sponsors also need to listen to their advisers’—and recordkeepers’—updates on legislation and regulation, sources agree.

In sum, Eissler says, “When you actually step back and review all that is involved in establishing, managing and monitoring a qualified plan, it is little wonder that there’s such a critical need for experienced, trained retirement professionals. While there are a multitude of common mistakes made when administering a plan, at a high level, implementing an ongoing review process is a critical best practice that would serve plan sponsors well. This process would include mapping out review meetings, maintaining minutes, documenting key retirement plan management decisions and regular review of investment policy statements [IPS], as well as continuous monitoring of service provider fees and services.”

Rush of Litigation Against Retirement Plans Expected to Continue

One insurer says the more than $1 billion in settlements thus far could make fiduciary insurance a thing of the past.

There have been approximately 200 “cookie-cutter” Employee Retirement Income Security Act (ERISA) class action lawsuits filed against retirement plans since 2015, including more than 90 cases filed in 2020 alone, says Jon Chambers, managing director at SageView Advisory Group, in a recent white paper, citing numbers from an industry insurer.

This includes an increase in lawsuits against smaller plans—i.e., those with less than $100 million in assets and fewer than 1,000 participants.

Get more!  Sign up for PLANSPONSOR newsletters.

With more “cookie-cutter” cases being filed, especially when the qualified default investment alternative (QDIA) is a “big ticket” target-date fund (TDF), Chambers writes, there is no sign of these suits slowing down.

All this has largely been due to what Chambers calls “the Schlichter Blitzkrieg,” referring to the barrage of lawsuits the Schlichter Bogard & Denton law firm filed against 401(k) plans and university 403(b) plans beginning in 2006. Several years later, in mid-2015, numerous other plaintiffs’ law firms began filing “copycat” style lawsuits against 401(k) plan fiduciaries and recordkeepers, generally following Schlichter’s “proof of concept” excessive fee claims, he writes.

“Over the past 15 years, ERISA fiduciary litigation in defined contribution [DC] plans has grown from a rare event … to a seemingly everyday occurrence,” Chambers writes.

‘Insurability Risk’

Amid the rush of litigation, fiduciary liability insurance underwriter Euclid Specialty says claims are so commonplace that fiduciary liability insurance could disappear.

“We have reached an inflection point in the war against [DC] plans because the risk has become virtually uninsurable,” Chambers says in his white paper, quoting a Euclid report. Thus, insurers to plan sponsors and plan fiduciaries are now beginning to talk about “insurability risk,” according to Euclid.

“Insurance companies have paid well over $1 billion in settlements, but this economic model cannot continue,” Euclid says.

For now, insurers are starting to hedge their exposure by considering reducing coverage and increasing retention, according to Euclid.

To protect themselves against ERISA litigation, which is “clearly significant for fiduciaries”—particularly when it comes to excessive fee cases—Chambers says, “thankfully, there are many strategies that plan sponsors can employ to mitigate ERISA litigation risk.”

Strong Governance Procedures

The wall of defense should start with “risk-mitigation strategies based on governance procedures,” Chambers says.

“Appoint a committee to oversee the plan’s fiduciary responsibilities,” he continues. “Define the duties of the committee in writing (via a committee charter) and have the committee review the duties and charter periodically. Have the committee develop, adopt and periodically review an investment policy statement (IPS), possibly with the assistance of an independent investment adviser. Hold periodic meetings (e.g., quarterly), distribute agendas and materials in advance, and prepare minutes that memorialize actions and decisions taken at meetings.”

Chambers goes on to say that it is also important to “consider involving qualified legal counsel in committee meetings/plan review process[es]” and to “ensure fiduciaries are properly appointed and appropriately trained.”

It is also smart for retirement plan committees to review fiduciary liability insurance coverage, ensure limits and deductibles are appropriate, and review communications from plan vendors to participants, he says.

Law firm Hanson Bridgett says plan sponsors can often avoid participant complaints through regular, clear communication. It adds that plan sponsors must be sure to “follow up on any participant complaints.”

Of course, sponsors must also have set procedures for monitoring service providers. Best practices, it says, include reviewing performance, including adherence to contractual performance standards; reviewing fees for reasonableness; and negotiating fees where appropriate.

All of this must be accompanied by a formal annual review process, and thorough plan document and operational compliance, the firm notes.

Plan sponsors should also be on the lookout for claims and appeals issues, as well as service provider issues, Hanson Bridgett says. Data security and fraud prevention are becoming more and more critical, for example.

Along the lines of data security, plan sponsors also need to have strict governance rules for committee meetings that are held remotely and should look for updates from the DOL on general fiduciary issues, the firm advises.

Legislative and Regulatory Priorities

Hanson Bridgett goes on to say that plan sponsors should also stay abreast of any legislative and regulatory changes. Priorities for this year include the possible passage of the so-called “SECURE Act 2.0,” and a potential new fiduciary rule from the Department of Labor (DOL), it notes. Both actions would have a big effect on the retirement plan industry and could also affect plan sponsors.

Environmental, social and governance (ESG) investing has also been a topic of hot discussion and changing guidance. Retirement plan experts say sponsors should continue to look for the latest guidance from the DOL if they are interested in using such investments.

Finally, the DOL is likely to issue continuing guidance on including private equity in employer-sponsored DC plans, the law firm says.

«