The reason, as has been noted in previous coverage on NAPA Net, is the Small Business Employees Retirement Enhancement Act, introduced earlier this month by Sen. Tom Cotton (R-AR), which includes provisions regarding so-called “open” MEPs, a type of employee benefit plan that can be maintained as a single plan in which two or more unrelated employers participate. This is a concept that has received bipartisan support on Capitol Hill, and of which the American Retirement Association has been largely supportive, viewing it as a device that could broaden coverage by encouraging employers to offer a plan.
However, under this bill, employers that have 100 or fewer employees who earned at least $5,000 during the preceding year and that participate in a pooled employer plan (PEP) registered with the Labor Department (though exactly what, if any, validation would occur as part of this registration is currently unclear) would not be considered a fiduciary to that plan – including with respect to the selection and monitoring of any plan service provider or any investment under the plan.
That’s right – for the first time since the passage of ERISA in 1974, the employer – in what remains an employment-based retirement system – would basically have no fiduciary role.
Barriers ‘Riff’
The proponents of this approach apparently think this level of involvement is a barrier to small employer adoption of these plans. There’s just one problem; that doesn’t seem to be the case when you actually survey employers who aren’t offering a plan as to why that’s the case.
For example, consider a 2017 survey of employers by Pew Charitable Trusts. Among those employers, 37% cited “too expensive to set up” as a “main” reason, and 71% as a reason. A lack of resources to administer the plan was cited by 22% as a main reason, and 63% as a reason. “Employees not interested” was a reason for half the respondents, and a main reason for 17%. Nearly a quarter (22%) noted they hadn’t even thought about it. Concerns about fiduciary liability? Not even on the list.
These trends have been pretty consistent over time. As far back as 2003 in the Small Employer Retirement Survey published by the nonpartisan Employee Benefit Research Institute, employers cited uncertain revenue (27%) as a top reason, costs of setting up/running a plan (16%), employees not interested (12%), and a concern that too much of the plan’s benefit would go to short-term workers (also 12%). Where did fiduciary concerns rank? Once again, they weren’t even on the list.
One place where fiduciary concerns were mentioned was a 2015 survey by the Transamerica Center for Retirement Studies. However, that survey found that concerns about fiduciary liability was cited by just 13% of employers – the very last item on their list of reasons (except for “other”). It was dwarfed by reasons like company is not large enough (58%), cost concerns (50%), employees not interested (32%), company/management not interested (27%), and concerned about administrative complexity (19%).
In sum, the issues that are holding employers back – and that have long held employers back – don’t have anything to do with fiduciary liability.
The good news is that when you look through those survey results to the things that are actually holding employers back, there are things that an open MEP could help solve, issues like cost and administrative complexity.
What Could Go Wrong?
Indeed, those who fail to appreciate the importance of employer involvement would be well advised to recall the case of Matt Hutcheson, who, after years of lecturing the industry on the importance of fiduciary standards, was sentenced to 17 years in prison by a federal judge in Boise, ID on 17 counts of a wire fraud scheme to steal $5 million of pension funds he oversaw to enrich himself and his family as well as buy a cash-strapped resort. An estimated 250 people lost money as part Hutcheson’s misconduct, with one person losing $950,000.
See, it wasn’t a regulator that detected Hutcheson’s criminal acts, and it sure wasn’t the MEP he was running – it was a plan sponsor.
Doubtless, those looking to insulate the plan sponsor from fiduciary liability are focused on removing what they think – or have been told – is a barrier to plan adoption, and thus see the elimination of that role as a step on the path to increasing retirement plan coverage. Doubtless there are MEP providers willing to assume the “transfer” of that responsibility.
The result, however, is more likely akin to removing a barrier between a fox and the henhouse.
- Nevin E. Adams, JD
Note: A 2012 GAO report notes that the Labor Department has said the potential for inadequate employer oversight of the MEP is greater because employers have passed along so much responsibility to the entity controlling the MEP, and that potential abuses might include layering of fees, misuse of the assets, or falsification of benefit statements. One pension expert also observed that small businesses do not extensively research retirement plans or actively seek them out. As a consequence, marketing may be the biggest determinant of MEP growth.
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