4 Things Plan Sponsors Are Scared of – and 3 More They Should Be

Halloween is the time of year when one’s thoughts turn to trick-or-treat, ghosts and goblins, and things that go bump in the night. But what are the things plan sponsors are scared about?

Getting sued.

Plan sponsors will often mention their fear of getting sued, and little wonder. The headlines are full of multi-million-dollar lawsuits against multi-billion-dollar plans, and if relatively few actually get to a judge (and those that do are decided in the plan fiduciaries’ favor), they nonetheless seem to result in multi-million-dollar settlements. Oh, and not only has this been going on for more than a decade, the issues raised are changing as well.

As a plan fiduciary, you can still be sued of course; and let’s not forget that that includes responsibility for the acts of your co-fiduciaries, and personal liability at that (see 7 Things an ERISA Fiduciary Should Know).

That said, those cases seem to involve a rather small group of rather large plans. Most plan sponsors won’t ever get sued, much less get into trouble with regulators, of course. And those who do are much more likely to drift into trouble for things like late deposit of contributions, errors in nondiscrimination testing, or not following the terms of the plan.

Changing recordkeepers.

Any plan sponsor who has ever gone through a recordkeeping conversion knows that, however smooth the transition, and regardless of how much better the experience on the new platform is, moving is a lot of work. And, as with relocating your home, the longer you have been in a particular location, the harder it seems to be. Knowing that, it’s little wonder that many plan sponsors make those changes only under a duress of sorts, forced by poor service, a lack of capabilities, (relatively) high fees, or more than one of the above.

And that, of course, means that the transition, however badly needed or desired, will likely be rougher – and take longer – than desired (see 3 Things Plan Sponsors Should Know About Changing Providers).

Offering in-plan retirement income options.

While surveys suggest that plan participants are interested in the concept of retirement income solutions, and other surveys indicate that plan sponsors are concerned about participants’ abilities to manage their retirement income flows, there has been little movement in the addition to current plan designs, nor little indication that participants, given access to that option, are quick to embrace it. Plan sponsors remain concerned about the cost and operational implications, not to mention an extension of their fiduciary responsibility to a product that is neither required nor requested.

That said, new legislation has been introduced that might at least mitigate some of those concerns – were it to become law (see also, 5 Reasons Why More Plans Don’t Offer Retirement Income Options).

The ‘squeaky’ participant.

We’ve all heard (and likely experienced) the response to that squeaky wheel that every organization has, and that every plan sponsor fears, or at least dreads. Other than sheer human inertia, there is perhaps no more powerful force in freezing proposed plan changes in their tracks than concerns about the response that this individual (and the individuals whose attention they always seem to garner) might wreak on those responsible for those changes.

We all know who they are. We all know what they do. And yet they continue to be a force to be reckoned with in many organizations.

And 3 They Should Worry About

Now, arguably most of the foregoing concerns are overblown – they loom larger in the abstract than they should in reality. But loom large they do. But what about the things they should be “scared” of, but often aren’t?

Their personal liability

Most of the aforementioned concern about being sued seems borne from a concern about the damage – both reputational and financial – to their organizations. While that is certainly a well-founded and rational concern, plan fiduciaries, particularly plan sponsors, often seem oblivious to the reality that their liability is personal.

You can, of course, buy insurance to protect against that personal liability — but that’s likely not the fiduciary liability insurance that most organizations have in place. And it may not be enough.

Participants not having enough money to retire

For much of their existence, workplace retirement plans have been, and been viewed as, voluntary affairs. The focus of plan sponsors was to provide benefits that served to both attract and retain valued workers, and the retirement savings program was high on that list. A variety of discrimination tests served to provide incentives to encourage a certain rate of participation, while others worked to either foster a certain rate of deferrals, or brought with them the pain of restraining the contributions of the more highly compensated. Despite those, encouragements the focus was almost always on the amount of contribution going in, not the amount of income that would eventually come out.

That has begun to shift in recent months amidst the growing evidence that workers, fearful of outliving their savings, are contemplating extending their working careers (the data still suggests that such notions are aspirational compared to the realities) at a point in time where the costs to the employer – both out-of-pocket and organizationally – of that employment are problematic. Moreover, there is a growing sense that concerns about retirement security while employed have costs of their own on productivity, as well as health – which contributes to the costs of things such as absenteeism, etc.

Enter a growing focus on what has been termed “financial wellness” that encompasses not only a focus on financial security post-retirement, but also in taking the steps ahead of retirement that allow individuals to successfully build toward that day. It is perhaps too soon to describe this as a “fear” – but it is a concern, and a growing one for attentive plan sponsors.

Not having the knowledge of a prudent expert

ERISA’s “Prudent Man” rule is a standard of care, and when fiduciaries act for the exclusive purpose of providing benefits, they must act at the level of a hypothetical knowledgeable person and must reach informed and reasoned decisions consistent with that standard. The Department of Labor notes that “[l]acking that expertise, a fiduciary will want to hire someone with that professional knowledge to carry out the investment and other functions.”

Indeed. Because, when it comes to the former, most people do – and as for the latter, many still don’t.

- Nevin E. Adams, JD

6 Things People Who Need to Save for Retirement Need to Know About Saving for Retirement

When it comes to retirement, Americans seem to be a pretty insecure bunch. But then maybe it’s because they don’t know all the things they need to know.

This, of course, is National Retirement Security Week, a week devoted to making employees more aware of how critical it is to save now for their financial future, promoting the benefits of getting started saving for retirement today, and encouraging employees to take full advantage of their employer-sponsored plans by increasing their contributions.

In the spirit of the week, here are six things that people who need to save for retirement (and who doesn’t?) need to know about saving for retirement.

You should save to at least the level of the employer match.

Many employers choose to encourage your decision to save for retirement by providing the financial incentive of an employer matching contribution. That match is often referred to as “free money” because you get it just for saving for retirement. That match is not actually “free” of course – but it is free for you. If it’s 25 cents for every dollar you save, it’s like getting a 25% return on your investment.

You should save to at least the level of the employer match – especially if your plan’s default savings rate is lower.

While most education materials provided with your 401(k) emphasize the benefit of the employer match (generally referencing that you don’t want to leave “free money” on the table), a growing number try to make it easier for you by automatically enrolling you in the plan. That’s the good news.

The bad news? That default savings rate (generally 3%) will almost certainly be less than you need to save to get the full employer match (see above). And it will almost certainly be less than you need to achieve your retirement goals/needs (also see above).

So, if you do take advantage of the convenience of the default, make sure that you remember to make the change to the savings rate at the first opportunity.

You can save more than the match.

A lot of people save only as much as they need to receive the full employer match. That’s certainly a good starting point, but it may not be the right amount for you. There are a number of factors that go into determining the amount and level of the match; how much you need to set aside for your own personal retirement goals is almost certainly not one of those factors. That said, you certainly don’t want to leave any of that match on the table by not contributing to at least that level. But if that’s where you stop saving, you’re probably going to come up short.

Uncle Sam will help.

Beyond the tax advantages to saving for retirement on a pre-tax basis – the ability to watch those savings grow without paying taxes until they are actually withdrawn – there is another savings incentive with which many are not as familiar. It’s the Saver’s Credit, and it’s available to low- to moderate-income workers who are saving for retirement. For those who qualify, in addition to the customary benefits of workplace retirement savings, it could mean a $1,000 break on your taxes – twice that if you are married and file a joint return!

That said, just 24% of American workers with annual household incomes of less than $50,000 are aware of the credit, according to the 15th Annual Transamerica Retirement Survey. However, that’s twice as many as found by the 11th Annual Transamerica Retirement Survey. You can find out more about the Saver’s Credit here.

Older workers can save more.

Thanks to a provision in the tax code, individuals who are age 50 or older at the end of the calendar year can make what are called annual “catch-up” contributions. In 2016, up to $6,000 in catch-up contributions may be allowed by 401(k)s, 403(b)s, governmental 457s, and SARSEPs (you can do this with IRAs as well, but the limits are much smaller).

The bottom line: If you haven’t saved enough, these catch-up provisions can help. You can find out more here.

Even if you’re capped in your 401(k), you can still save more.

There’s little question that saving for retirement at work is the way to go – there are tax advantages, the support of the employer matching contributions, and access to investment choices that are screened and reviewed on a regular basis by the plan fiduciaries. However, there are certain legally imposed annual limits on how much you can save in your 401(k). If you hit those limits (and most don’t), there’s nothing that says you have to limit yourself to saving there.

But you’d be foolish not to take full advantage of your workplace savings opportunity first.

- Nevin E. Adams, JD

A Hallmark Holiday?

I’ve always had a certain ambivalence about what are cynically referred to as “Hallmark holidays.” You know the ones I’m talking about – the ones that seem (and in many cases, are) crafted for the sole purpose of generating sales for greeting card sellers.

Next week some – and I hope many – will commemorate National Retirement Security Week (which used to be called National Save for Retirement Week). Sponsored by the National Association of Government Defined Contribution Administrators (NAGDCA), it runs from October 16-22. It’s a national effort to raise public awareness about the importance of saving for retirement – and it’s even managed to obtain a Senate resolution in support of its observance.

That said – and despite the hard work, talented designs, and sponsorship of a number of large and reputable financial services organizations, I suspect many of you haven’t even heard of it. More’s the pity.

The week is focused on three key objectives:

• Making employees more aware of how critical it is to save now for their financial future
• Promoting the benefits of getting started saving for retirement today
• Encouraging employees to take full advantage of their employer-sponsored plans by increasing their contributions

We’re all too aware of the challenges that confront our nation’s retirement savings system. I’d go so far as to wager that just about everybody taking the time to read this post thinks about those items every working day, and doubtless spends a good part of their week trying to advance those causes – so, what’s the point of a single week devoted to that emphasis?

The point, of course, is not for us – but for those who don’t have these issues on their mind every day. Because, even if we should be thinking about this every day of the year, special “events” like National Retirement Security Week give those of us who do a chance to, as a collective group of professionals, remind those who don’t of the importance of thoughtful preparations for retirement. Better still, with the plan design improvements available today, you might only need one week – or one hour – of getting an individual – or group of individuals – to think about those messages.

Consider, for example, if that period of focus got an individual (or group of individuals) to enroll in their workplace retirement plan, or led an employer to embrace automatic enrollment, or, for those who already auto-enroll, to increase the default contribution rate. What if that focus prompted those who are already participating to increase their deferral rate, or to boost that rate so that they got the full benefit of the employer match? And what if that period of focus – or the actions above – led workers to stop and figure out how much they might need to save to sustain their retirement?

Sure, a cynic might see National Retirement Security Week as nothing more than a Hallmark “holiday.” But I see it as an opportunity – an opportunity to pay attention to the people – and things – we often take for granted.

Let’s take advantage of the “occasion.”

- Nevin E. Adams, D

Litigation, Regulation, and Tax Reform – Oh My!

It’s been a busy year, a crazy summer – and we’ve still got a presidential election to go.

It has been years since things actually slowed down in the summer (at least in the way we all seem to remember it), but this summer has been busier than any I can remember. Not only has everybody been making preparations for the implementation of the Labor Department’s fiduciary regulation (and it’s affecting different business models very differently), we’ve had the looming prospects of litigation regarding the legality of the regulation itself, and the authority of the Labor Department to undertake it.

The challenges to that regulation share certain critical aspects, and yet each has its own unique flavor – and let’s not forget that they are filed in three different federal venues (four, counting the one filed just last week). Could one prevail in convincing a federal judge to grant a preliminary injunction to stop the rule’s implementation? Could such a ruling actually serve to maintain the status quo until after the presidential election? Could that presidential election result in new leadership at the Labor Department? If so, might a new president decide to halt implementation, and set a new course for that regulation? It seems unlikely now, but that’s pretty much what happened in 2008 with the then-pending advice regulation from the Labor Department.

Oh, and what about the series of excess litigation lawsuits taking on some of the nation’s largest (and we’re talking multi-billion dollar) university retirement plans? A decade ago, the law firm of Schlichter, Bogard & Denton galvanized the retirement industry’s attention with about a dozen such lawsuits filed against similarly mammoth 401(k) plans.

Things have changed since then, of course. Sure, revenue sharing is still an issue, as is the disclosure of such transactions to participants. But there is a greater sophistication in the current wave of allegations – it’s not just the use of retail versus institutional shares, but the failure to consider investment vehicles like collective investment trusts and separate accounts, the choice of active management funds with an S&P 500 benchmark instead of an S&P 500 index option itself, the choice of a poor-yielding money market fund instead of a stable value option – and in some cases, the choice of what is alleged to be a high-priced stable value choice rather than a relatively straightforward money market fund.

Since the beginning of the year, the cases brought against 401(k) plans – and this has found its way into the 403(b) litigation – have challenged not only the methodology for recordkeeping fees (dismissing asset-based revenue-sharing in favor of per-participant approaches), but attempted to set markers as to what that reasonable per-participant charge should be. Needless to say, millions of dollars are at stake – and one suspects we’re not near the end of even this litigation cycle.

And then there’s the prospects for tax reform. Sure, we may have been lulled into complacency by the gridlock in Congress that calls to mind a Friday afternoon traffic jam on the Beltway. But the major party candidates are already talking about changes to tax rates, and the rates they plan to cut – and in some cases plan to raise – could, if enacted, have a ripple effect on the current tax structures for retirement plans. Could the current 401(k) deferral be rejected in favor of a Roth-only approach? Might the contribution limits and benefit levels be frozen in place – or even reduced? Tax reform means different things to different people – and can impact different people in very different ways. And make no mistake, those kinds of changes are being contemplated as you read this. Could something actually happen?

In the midst of all this change and potential disruption lies opportunity for advisors. There will be plan fiduciaries looking for guidance, and plan sponsors more open to plan design changes than they may have been otherwise. It’s likely that firms (and advisors) that had previously been committed to the retirement business will rethink that commitment, and advisors who merely dabbled in this space may well decide it has simply become too rife with potential litigation to continue their dalliance.

That said, if the field is winnowed, the firms – and advisors – who remain will doubtless be made of sterner stuff. Those who survive and who hope to prosper will likely have to step up their game to compete effectively in this new, and more challenging arena.

- Nevin E. Adams, JD

Rescuing Retirement from the ‘Rescuers’

Delegates to last week’s NAPA DC Fly-In Forum were treated to a discussion about a proposal touted as “rescuing retirement.” But the math (still) doesn’t seem to work. And it’s likely to kill the 401(k) (or at least its tax benefits). Here’s how.

The proposal itself isn’t new – its the Guaranteed Retirement Account (GRA) concept initially introduced by the New School’s Professor Teresa Ghilarducci, now somewhat modified, and embraced by Hamilton E. (Tony) James, President and COO of money management Blackstone. This newest version was rolled out earlier this year. Writ large there seem to be two significant differences in this newest version (packaged in a nice 119-page softbound book, Rescuing Retirement):

• James’ involvement, which lends some investment cred to the assumptions of the proposal; and
• a reduction in the mandatory contributions from employer and employee (the original proposal called for 5%, the new one only 3%).

The Ghilarducci/James team firmly believes that the current tax preferences inordinately benefit higher-paid workers, and therefore they have no trouble taking those away from all workers (they’ll let employers keep their current preferences for sponsoring the plan) in order to “pay” for the $600 non-refundable tax credit that is supposed to make the mandatory 1.5% employee contribution “free” for lower-income workers.

Under the GRA proposal, workers won’t be able to access the money prior to retirement – no more loans or hardship withdrawals. They assume, and perhaps rightly so, that emergency savings shouldn’t be taking place in your retirement account. Additionally, when you do retire, you will have to access the money in an annuity form – no more lump sums, and no bequests. You annuitize the payment at retirement (it can be a joint and survivor), but once you pass, any residual amount stays in the pool.

Ghilarducci and James actually seem to think they are doing employers a favor by giving them a way “out” of the bother (and expense) of providing workplace retirement plans. (James went so far as to refer to some conversations he’s had with some Fortune 500 CEOs, and apparently they’d love nothing more than to be done with these plans.) Oh sure, for those who have not previously offered a plan their new 1.5% mandatory contribution will represent an additional cost – but for everyone else, that 1.5% is likely a drop in the bucket compared to what they are spending now – and they won’t have to deal with the administrative responsibilities or fiduciary liability of a qualified plan.

But aside from my very real sense that killing the tax preferences for 401(k) savers would also serve to “kill” the 401(k), policymakers can’t help but be drawn to the notion of a proposal that purports to “rescue” retirement without costing the taxpayers. Well, without “costing” the taxpayers more, anyway (remembering, of course, that these are deferrals – a postponement of taxation, not a permanent deduction).

But does the proposal actually do what it claims?

First off, it does nothing for Boomers. As James aptly noted at the Fly-In, “It’s too late for them.” So whose retirement is being rescued? Well, younger workers – Millennials particularly, but more specifically, lower income workers – who in some cases are also part-time, part-year. Those workers are less likely to have access to a plan at work, and – likely because of their lower incomes — are certainly less likely to take full advantage of it.

Still, if today’s savings rates are deemed insufficient to help today’s retirement savers achieve their goals, how in the world can a combined 3% savings rate (employer and employee) possibly “rescue” retirement?

Well, despite their book’s auspicious title, from our discussion last week (and there were a couple of hundred witnesses), the only people who are being “rescued” are those who aren’t saving anything at all now (they’d be forced to save under this proposal) who also happen to be making $46,000 a year or less. That’s the group that Ghilarducci and James say will, under this proposal, achieve a 70% replacement rate (assuming Social Security, and no reductions there) in retirement. Everybody else? Well, you can keep saving for retirement, but Ghilarducci and James don’t see any reason to “underwrite” that responsible behavior by allowing you to defer paying taxes on compensation you haven’t yet received.

But even if you’re only focused on shoring up the prospects of lower-income workers, could a 3% contribution be enough? Even with the 7% return¹ that Ghilarducci and James assume for their GRAs, I just couldn’t see it adding up.

So I asked Employee Benefit Research Institute (EBRI) Research Director Jack VanDerhei to run the GRA program assumptions – for younger workers only (ages 26-30) – and asked him to compare that to what those same workers might get if they simply continued in their 401(k)s.

The EBRI analysis took actual balances, contribution rates and investment choices across multiple recordkeepers from more than 600,000 401(k) participants, looking at those currently ages 26-30, including those with zero contributions, with 1,000 alternative simulated outcomes for stochastic rate of returns based on Ibbotson time series (with fees between 43 and 54 bps), including the impact of job change (an assumption was made that 401(k) participants would continue to work for employers who sponsored 401(k) plans), cashouts, hardship distributions, loan defaults, and with contributions based on observed participant data as a function of age and income and asset allocation based on observed participant data as a function of age. For the Ghillarducci/James GRA, EBRI assumed no cashouts, hardship distributions or loan defaults (they aren’t allowed), assumed a deterministic 7% nominal return with no fees, and took their assumptions about the 3% mandatory contributions. And then compared the two outcomes at age 65.

The result? Well, as you can see in the chart to the right , the median for all income quartiles fares worse under the GRA proposal than under their current 401(k) path. (To download a full-page pdf of the chart, click here.) That’s not to say that every 401(k) path will provide sufficient income in retirement, of course – but it does affirm the common sense logic that if current rates of saving aren’t sufficient, 3% – even mandatory, and even with no leakage – won’t match the performance of the 401(k).

Of course, we know that today not everyone has access to a 401(k), and we’re all working to change that. But those truly trying to rescue retirement should probably do so with a life preserver, not an anchor.

- Nevin E. Adams, JD

Footnote

1. They view this return as conservative next to the 8.5% returns assumed by public pension plans, and think 401(k) investors only get 3-4%.