DOL’s Proposed ESG Restrictions Panned in Public Comments

The clear trend among investment managers, retirement industry professionals and members of the public is skepticism about the need for the proposed environmental, social and governance (ESG) investing restrictions for retirement plans.

Proposed regulations often generate some controversy, whether they are focused on expansive issues, such as protecting the environment, or on narrower matters, such as the use of certain types of investments within tax-qualified retirement plans.

This has certainly been the case for the recent regulation proposed by the Department of Labor (DOL) focused on restricting the use of environmental, social and governance (ESG) investing principles within defined contribution (DC) retirement plans. The full text of the proposed regulation stretches to 62 pages. The summary explains that it will modify Title I of the Employee Retirement Income Security Act (ERISA) “to confirm that ERISA requires plan fiduciaries to select investments and investment courses of action based solely on financial considerations relevant to the risk-adjusted economic value of a particular investment or investment course of action.”

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According to the DOL leadership, the proposal is designed to make clear that plan fiduciaries “may not invest in ESG vehicles when they understand an underlying investment strategy of the vehicle is to subordinate return or increase risk for the purpose of non-financial objectives.”

Such language may sound academic, but the consensus among expert ERISA attorneys is that these restrictions will make it more difficult, in immediate and practical terms, for retirement plans to use ESG investments. The proposed regulation does not fully do away with the possibility of using ESG funds and strategies, but plan sponsors can expect greater scrutiny of their choices should the regulation be fully implemented.

Quick Condemnation 

Though the DOL gave the asset management industry and the public just 30 days to submit comments on the unexpected regulation, there are now nearly 1,100 comments published on the agency’s website. Many of these reflect the growing public interest in using ESG investments—whether inside retirement plans or elsewhere—as a means of driving positive social change.

Some of the comments are supportive of the regulation, echoing the DOL’s argument that tax-qualified retirement plans are not the appropriate place for ESG investing. But the clear trend among investment managers, retirement industry professionals and members of the public is skepticism about the need for these new restrictions.

Jason Berkowitz, chief legal and regulatory affairs officer at the Insured Retirement Institute (IRI), summarizes his organization’s letter in a statement sent to PLANSPONSOR.

“We believe [the DOL] should maintain the long-standing principles-based approach to investment selection by ERISA fiduciaries,” Berkowitz writes. “Singling out the ESG investment category for unique treatment and scrutiny is inconsistent with well-established, principles-based ERISA regulations.”

The IRI’s comment letter states that the ESG proposal would likely trigger unintended consequences, expose plan fiduciaries to additional regulatory scrutiny and heighten litigation risks related to the selection of all plan investment options. Additionally, the comment letter says, the ESG proposal should be consistent with the DOL’s recently issued private equity investments Information Letter and President Donald Trump’s executive order to reduce regulatory impediments to financial institutions.

In comments echoed in other letters, the IRI takes issue with the DOL’s cost-benefit analysis published alongside the regulation, which concludes that the ESG proposal “will impose virtually no costs” on the thousands of fiduciary service and investment product providers to the more than 700,000 ERISA-governed defined benefit (DB) and defined contribution plans that the ESG proposal may affect. 

“The amount of time and money necessary for fiduciary service providers and others to undertake the relevant foregoing tasks will be significant,” Berkowitz says.

The comment letters say plan sponsors will have to incur legal costs, plus additional expenses of hiring investment professionals, to conduct a thorough analysis of all plan investments. They will have to ensure proper documentation and potentially make lineup changes. The aggregate legal and investment professional costs could be consequential, they say.

Alongside its comment letter, Voya this week published results from new research regarding general consumer interest in the application of ESG principles to a retirement plan offered by their company. The data shows that 76% of individuals feel it is important for their employer to apply ESG principles to workplace benefits, and 60% would likely contribute more to an ESG-aligned retirement plan if it was reviewed and certified as socially and environmentally responsible.

“At Voya, we believe that creating sound investment decisions is fundamental to helping Americans achieve their retirement investing goals, and we strongly support a system that allows the ability to choose from a wide variety of products and investment information to achieve this goal,” says Christine Hurtsellers, CEO of Voya Investment Management. “We believe that fulfilling fiduciary obligations and ESG investing are not mutually exclusive. Contrary to the DOL’s assertion, recent experience has shown that ESG investments can outperform broader markets, particularly in times of market stress. Ultimately, we believe that ESG factors may help identify material financial risks and opportunities and can drive better long-term investment performance. If adopted as proposed, we believe the proposal would have a chilling and negative impact on ESG investment activities that would otherwise benefit retirement plan savers.”

Lessons From the Fiduciary Saga?

Such negative criticism immediately calls to mind the early reaction to the now-defunct DOL fiduciary rule—in particular the first proposed version of the rule, which was criticized as unnecessary and unworkable. After receiving mostly negative comments with its first proposed version of the regulation, the DOL made significant changes to its final regulation, which was itself then struck down by an appeals court.

Industry analysts say it’s unclear at this stage what may come next. Given the number of negative comments across so many varied constituencies, some believe the DOL will be hard-pressed to completely ignore the negative commentary. Thus, the regulator may choose to make at least some small changes “on the margins,” as one attorney put it. Given the Trump administration’s broader stance on the environment, climate change and social justice issues, there is some agreement that wholesale changes are unlikely.

Another point of interest is that pro-ESG lobbyists and advocates in Washington—at least those more focused on retirement policy—do not seem to have a consensus view on where positive support for the ESG restrictions may be coming from. They agree that this doesn’t seem like a topic that Congress has been particularly interested in, just the executive branch.

Some of the comment letters written by individuals suggest the fossil fuel industry is behind the restrictions. However, several retirement industry analysts question that assessment, noting it would be a strange tactic for the fossil fuel industry to push for something like this that covers only retirement plan investments. The fossil fuel industry is facing much broader challenges beyond potentially losing favor among DC plans here in the U.S. On the other hand, DC plans do have a sizable and growing amount of financial power, experts say.

The feeling among some analysts is that the regulations are being pursued more as a matter of politics, within the context of the president’s broader agenda. Indeed, Trump’s views on issues such as climate change are well documented. This assessment is further backed by the fact that few, if any, major business groups seem to have come out in support of the ESG proposal, so it doesn’t appear that the DOL sought a great deal of outside help with this project, sources say.

Reaching K-12 403(b) Plan Participants During the Pandemic

School districts will find that advisers who normally camp out in the cafeteria or teachers’ lounge are striving to continue educating participants in creative ways.

Advisers to K-12 school district employees often set up in cafeterias or teacher lounges, but, with schools closed, they are having to communicate in new ways.

Lisa Bamburg, co-owner of Insurance Advantage & LMA Financial Services in Jacksonville, Arkansas, is an investment adviser endorsed by the Arkansas Retired Teachers Association. She says 99.9% of her firm’s contact right now is through Zoom video conferences and phone conferences. “We love to see our clients—we miss the face-to-face,” Bamburg says. “Our office has not been open since March 20, and we have not met face-to-face with clients since then.”

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Bamburg also uses Zoom to meet one-on-one with teachers to talk about retirement. “We’ve had a surge of teachers wanting to talk about retirement since COVID. It’s normal for some teachers to retire as of May 31 with a June 30 retirement date, but, because of COVID, more are scared to go back in the classroom,” she says. Bamburg explains that, under the current plan, teachers are going back August 24, and some districts will have a blended virtual/in-person instruction setting.

Bamburg says she prefers doing one-on-one discussions via Zoom rather than over the phone because she likes to be able to see the person.

“As a company, we had luckily been putting together digital tools for about two years now to support advisers and clients, so when things started shutting down, we were able quickly to pivot to a virtual world,” says Jon Reilly, head of Core Sales and Distribution for Voya’s Tax-Exempt Markets business in Orange County, California.

He says Voya was already conducting virtual meetings but that they went into overdrive in March and April. Voya uses Zoom, not only with participants, but with plan sponsors as well. “We told the team Zoom is definitely a required skill. We did some additional training on Zoom,” Reilly says.

Conversations during virtual meetings include making sure participants know how important it is to stick with their plan and to invest in the market for the long-term, and going over provisions of the Coronavirus Aid, Relief and Economic Security (CARES) Act, he says.

“It’s been very successful,” Reilly says. “We knew we had the tools and were well-positioned, but we weren’t really sure how it would play out. The feedback from our advisers and clients have been good.”

Bamburg’s firm is also doing pre-retirement workshops via Zoom for K-12 employees who may be preparing to retire within three to five years. These are 40-minute presentations and are school employee-specific. “Eighty-five percent of our business is school employees. We discuss their pension options; T-DROP, the Teacher Deferred Retirement Option Plan, and 403(b) plans,” Bamburg says. She explains that after 28 years of eligible service, active members of the Arkansas Teacher Retirement System (ATRS) may elect to participate in T-DROP in lieu of retiring and accepting a service retirement benefit. They no longer pay into the plan; their employers still contribute.

The Retirement Benefits Group at Equitable is trying to be a resource where it can, by speaking to participants and plan sponsors alike. It has participated in associations’ and business officials’ meetings. “Understanding the CARES Act, waivers for student loans and student loan forgiveness, and retirement readiness are big topics we’ve needed to address since March,” says Bernadette Mitchell, chief strategy officer of the Retirement Benefits Group at Equitable in New York City.

Pros and Cons of Virtual Meetings

One advantage to a virtual, pre-retirement workshop is that many employees don’t want anyone to know they are thinking about retirement, and they’re able to stay anonymous with a virtual meeting, Bamburg says. However, she says, a disadvantage is that it is “just better” when there is interaction between people.

Bamburg says she likes having the ability to do a Q&A in a Zoom webinar. “We have different breaks for answering questions. There is someone to monitor the questions,” she explains. “If the answer is specific to a person, the one monitoring questions will answer individually to him, but if the answer would benefit the group, then we’ll ask it out loud and answer out loud.”

“This has opened our eyes to the fact that we can reach even more people than in person. We can provide a benefit for more people, so we will do some things virtually even when we can go back to face-to-face meetings,” Bamburg says. “It is the new normal and I don’t think we’ll ever go back to the way it used to be. And, that’s OK, we’ve learned some things and all will be better off for it.”

While Reilly says he hopes things get back to normal—for everyone’s health and safety as well as to meet with participants and plan sponsors—he says he thinks Voya will continue its virtual efforts. He cites a Voya study which found about one-third of respondents said they believe technology will have the greatest impact on the way they will save and invest in the future. “We fully expect a hybrid of virtual and in-person,” Reilly says.

Mitchell says the majority of virtual meetings with educators have been one-on-ones because they are at home and not congregating as they did in school. And educators are asking for spouses or others to join the conversation.

“Getting that additional person to listen is a benefit of doing meetings virtually,” Mitchell says. “There are definitely silver linings. With technology, there is more engagement and it’s streamlined. Also, before, educators had only limited time, but now there is more time to talk through specific needs.”

She adds that many teachers have felt very disconnected, and having more time and streamlined technology has helped that. “Any time there is a crisis, people come together. This has brought us closer to our clients, not only from a financial standpoint but understanding who they are and meeting their needs,” Mitchell says. “Listening has been eye-opening.”

Virtually Is Not the Only Way to Connect and Educate

“We said, ‘Let’s not assume that we know anything,’ and let’s ask our clients, ‘How would you like us to communicate with your staff?’” says Mitchell. “That has been the best thing to do. We are getting very different answers in different places. We are keeping an open mind to be ready for virtual communications, but we’re also listening to what’s happening.”

Mitchell offers an example in a county level district in Florida. Usually, when school starts back, Equitable provides a lunch and an on-site booth. School started back last week, so Equitable did a drive-by breakfast, and a lunch as well, because there were so many people. Its staff wore masks and were there to help provide materials.

“Virtual is 95% of what we’re doing, but some schools have said, ‘We’re having new teacher orientation, so can you come in, maintain social distancing and provide digital materials?’ For one district in Maine, we were on a stage,” Mitchell says.

Voya recognizes that advisers have to do things to make sure people stay involved. “We still do a lot of phone calls. Some people are not comfortable with technology,” Reilly says.

If a participant or plan sponsor wants to reach an adviser, Voya’s advisers all have an online calendar system they can use. “We’ve pushed it out to clients so they can see available time slots and can sign up,” Reilly says. “We’ve seen a lot more usage of those online tools and good conversations coming out of calendared meetings.”

Mitchell says Equitable’s advisers also have an electronic calendar for school employees to sign up for discussions. “We’ve had it for a long time but now there’s more of a need,” she says.

Bamburg says her firm is relying on written communications. “We always follow up virtual meetings and webinars with email. Also, participants in the virtual events are put on a mailing list, and a newsletter goes out about three times a year. They can include information about retirement or 403(b) changes, such as what is in the SECURE [Setting Every Community Up for Retirement Enhancement] Act, as well as opportunities for future webinars or seminars,” she says.

Digital-tool engagement has been what Mitchell calls “off the charts.” For example, participants were sent an email letting them know they can enroll in their retirement plan directly on the phone or computer and use an e-signature. But, she says, some people can get a little frustrated with enrolling online. They may get caught up on something, need guidance or have questions. In those cases, advisers can use Microsoft Teams to talk to participants.

Equitable has also worked to eliminate the flow of paper. For example, some schools want the salary reduction agreement on their websites so participants can choose from different providers.

Reilly says Voya is also paying attention to who is calling in to its client care center or clicking through its website, making sure that when they want to take an action, if the call center or website doesn’t help, an adviser is alerted. “It’s been helpful because advisers are able to answer questions in real time. It’s a quick hand-off depending on advisers’ schedules,” Reilly says.

Preparing for the Fall

Bamburg is getting ready for the fall, when she will talk to new teachers about 403(b)s and the importance of contributing to them, as well as what to expect from the pension plan. “We have to encourage them and show them how to contribute to a 403(b). We teach them how to save incrementally, to start small and build up,” she says.

Voya is already planning virtual enrollment meetings for the new year. “We recently rolled out the ability to enroll in a 403(b) plan through Zoom,” Reilly says. Voya is working with as many school districts as it can to figure out the best way to have virtual meetings and make sure new hires understand the plan. “That will be the hardest piece as we move into the new year,” he says. “If schools don’t go back to in-person, what are the districts going to be doing? We’ve revamped our marketing material to emphasize the importance of saving and of saving early.”

Reilly points out that retirement plan education is not the first thing on school districts administrators’ minds right now, as they are trying to figure out how to open and handle the COVID-19 crisis. “Our sense is that once districts have a plan in place, they will work more closely with us to figure out how to reach new hires. It will be a combination of virtual meetings and marketing materials,” he says.

Going virtual was a big change, but it gets easier as things move on, he says. But, he also points out some people are getting “Zoom fatigue,” and are less interested in using video calls. “Some people want to talk to us. We’ve learned we need to offer options,” Reilly says.

Mitchell says advisers miss their clients. “Some tell clients, ‘Let’s meet in your backyard and social distance.’ There is enthusiasm for back-to-school meetings. Some are giving out masks, hand sanitizers and food at schools. They’re finding any way to connect,” she says.

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