Why Doesn’t Every Plan Have Automatic Enrollment?

For all the good press and positive results that automatic enrollment gets, one might well expect that every plan would embrace it. And yet today, nearly a decade after the passage of the Pension Protection Act, many still don’t.

So, why don’t all plans use automatic enrollment — and what can you do about it? Here are the primary objections that I have heard from plan sponsors — and some possible responses.

Cost.

The simple reality is that automatic enrollment “works,” which is to say that overnight, it has the very real potential of transforming a long-standing plan participation rate of 67% or 75% to 95% or greater.

The other simple reality is that when you take that likely increase in participation rate (generally from 70% to 95% or so), and then figure out the increase in matching dollars that would result — well, it can be a sudden budget jolt, particularly when you think about it applying to an employee population that is likely more tenured and highly compensated.

Personally, I’ve never seen much response to the threat that plan sponsors who aren’t attentive to the outcomes of the plans they provide will find themselves accounting for that decision in a court of law (remember when they were all going to get sued for not offering advice?). Nor have I seen the cost possibilities of adopting a stretch match offset the PR realities of imposing it.

For years, employers have struggled with the rising (and often annually rising) costs of benefits like health care. A number of larger employers have embraced the so-called “de-risking” of their pension obligations, in many cases trading the uncertain future obligations on their bottom line of their defined benefit pension in favor of a defined contribution alternative. But that has also had the effect of transferring a greater uncertainty about retirement to their workers.

RESPONSE: Today there is plenty of evidence to suggest that workers are increasingly concerned about retirement finances, and that those concerns are not only cutting into their productivity at work, but that, in a growing number of situations, their solution to those concerns (real or imagined) is simply to extend their working careers. And a growing number of CFOs recognize that those costs are real and growing — and can be mitigated by better retirement preparations by their workforce.

Some (still) view it as too paternalistic.

Like it or not, at some level, automatic enrollment requires that the plan sponsor “impose” a savings decision on a participant, and even though workers can choose to opt out, many plan sponsors are simply disinclined to set aside the purely voluntary approach.

Indeed, inklings of this can be seen in the varied industry surveys that continue to find that, even when plans adopt automatic enrollment, they tend — by a margin of 2:1 — to apply it only to new hires, rather than to “disturb” workers who, at least in theory, have previously been afforded the opportunity to participate and decided not to. Some are hesitant to “insult their intelligence” by doing so, and for others, it’s just the economic dilemma posed above.

While plan sponsors are understandably reluctant to rouse those “sleeping dogs,” it’s hard to imagine that they aren’t just as concerned about their retirement well being as those recent hires. Moreover, while the PPA doesn’t mandate going back to older workers, plan sponsors desirous of those safe harbor protections either have to, or have to be able to establish that they have.

RESPONSE: The ultimate solution, of course, lies in understanding that the reasons some newly eligible workers chose not to participate — or more likely made no choice at all — are the same reasons the not-so-newly eligible are still on the sidelines. For employers — particularly those who have already embraced the design on behalf of their new hires — the question remains: Shouldn’t you be just as invested in the retirement security of those who have made a longer-term commitment to you?

Safe harbor plans already have it covered.

Many smaller programs that might once have been willing to go down that route as a means of avoiding trouble with the nondiscrimination and top-heavy tests have since found the solace required in adopting a safe harbor design.

RESPONSE: Maybe nothing. If a safe harbor plan is already in place, well arguably, that’s just a different kind of automatic enrollment, though it doesn’t tend to show up in the adoption statistics.

Some fear it will reduce deferrals.

More accurately, it may reduce average deferrals. Indeed, the simple math of automatic enrollment is that you get more people participating, albeit at lower rates (at least until design features like automatic contribution acceleration kick in). Put another way, participation rates go up, and average deferral rates dip — at least initially. That might mean that some individuals do, in fact, save less by default than if they had taken the time to actually complete that enrollment form, or if they fail to take advantage of the option to increase that initial default. This is a line of thinking that gets picked up every so often by the financial press, generally by some writer looking to find a contrarian angle on automatic enrollment. And sure enough, the conclusion seems so striking that many seem to feel compelled to share those articles, rather than simply dismissing it as ill informed, if not uninformed.

RESPONSE. Remind them that those articles ignore the reality — borne out by the data — that many workers, and generally younger, less tenured workers, will be saving more because that initial savings choice was automatic. Those most likely to be short-changed by automatic enrollment are higher income individuals — who arguably ought to know better.

Concerns about administrative issues.

Even in this age of automation, it can be complicated to unwind payroll elections, and while the PPA outlined a series of provisions to make it easier to give workers the ability to opt out (an extended grandfathering period for them, and the ability for their employer to temporarily invest those monies in vehicles that wouldn’t lose value during that temporary period), it can still be a tedious, painful process (depending on whom you rely on for payroll and recordkeeping services).

RESPONSE. Sure it can be a hassle if it should come up — and we’re talking about somebody’s paycheck. On the other hand, so few opt out, the hassle might be more illusion than reality.

Some employers — especially smaller ones — know why employees aren’t contributing.

When you look at the survey data on automatic enrollment adoption, there is a wide gap between the largest employers (where automatic enrollment is relatively common) and the smallest employers. Of course, most industry surveys do a better job of capturing the activity among the former (those being the clients of the providers who produce those surveys) than the latter, so it’s easy to think that automatic enrollment is more prevalent than it actually is.

However, when you talk with smaller employers about the concept, it’s not unusual to encounter a very personalized resistance, because they: (a) have likely approached their workers individually on the topic; and/or (b) have heard directly the reason(s) why they are not participating. To them automatic enrollment is a particularly harsh approach, since it basically requires that they ignore or discount the reason(s) they have already been given.

RESPONSE: First, it’s worth confirming that they have, in fact, actually made those inquiries directly. Second, see how long it has been since that conversation. Circumstances change, after all — and that trusted worker who told them several years back why they couldn’t contribute, may now be embarrassed to change course. Finally, of course, automatic enrollment, particularly with the help of today’s default investments, makes it a lot easier to start saving — right.

What's Next?

The reality is that automatic enrollment won’t be appealing to every plan sponsor’s benefits philosophy or budget. But unless your plan participation rate is in the upper 90% range, the reality is that whatever you are doing to encourage participation isn’t as effective as automatic enrollment could be. And once you get people in the plan, just think what else you could be helping them with…

- Nevin E. Adams, JD

15 (More) Retirement Plan Points to Ponder

Working with retirement plans is a complicated, challenging and constantly changing process. That said, there are certain constants — and things that bear repeating and/or reconsidering from time to time.

Since I published my first list of 15 last fall (one of my most popular, as it turns out), I’ve gotten several very good suggestions — and had an epiphany or two.

Here are a few (more) points to ponder:

1. Cheaper isn’t always better, unless it’s the only difference.
2. Sometimes you do get what you pay for — but not always.
3. If you’re not doing anything “wrong,” you probably aren’t doing anything much.
4. You can spend a lot of money in court being right.
5. A fund whose allocation is based solely on date of retirement is sure to miss something, but not as much as a fund whose allocation doesn’t take that into account.
   
6. If you don’t know how much you’re paying, you’re likely paying too much.
7. Don’t assume that those who aren’t saving via your workplace retirement plan know what they are doing — or what they are missing.
8. There’s something about putting decisions down on paper that helps people take them more seriously.
9. Figuring out how much to take out is harder than figuring how much to put in.
10. The werewolves always outnumber the silver bullets.
11. When it comes to workplace retirement plans, there are three kinds of people: those who are ERISA fiduciaries and know it, those who aren’t ERISA fiduciaries and know it, and those who are ERISA fiduciaries and find out via subpoena.
12. If you can’t remember the last time you did a request for proposal, it’s probably overdue.
13. The default deferral rate for a non-automatic enrollment plan… is zero.
14. If you don’t know why “we’ve always done it this way,” it’s time you did.
15. You may not know all the right answers, but it’s worth knowing the right questions.

- Nevin E. Adams, JD

4 Things That Make Me Go ‘Huh?’

Ours is a business where surveys and trends often shape not only perceptions, but policy — though sometimes the conclusions drawn, and even the premise itself — make me go “huh?”

Here’s a sampling:

Citing a drop in deferral rates as a failure of automatic enrollment.

Every so often a personal finance writer will stumble across an industry survey that shows that the average deferral rate in 401(k) plans has declined, a problem they attribute to automatic enrollment adoption. We all know what is going on here; individuals who take the time to fill out a form and enroll in the plan manually tend to defer at a higher rate than do those who are automatically enrolled, the latter typically at a modest 3% rate. On the other hand, automatic enrollment has a dramatic impact on raising the participation rate. The rest is just math — more people, saving at lower rates = a lower average deferral rate.

Now, those individuals automatically enrolled at a 3% rate may draw down the average deferral rate of a plan, or the industry, but it’s almost certainly true that most people who are now saving 3% without automatic enrollment would likely have been saving — nothing at all.

Equating retirement confidence with retirement readiness.

Seems as though every other month we get yet another take on how Americans feel about their retirement prospects — and it’s never very reassuring. The Retirement Confidence Survey conducted by the nonpartisan Employee Benefit Research Institute (EBRI) and Greenwald & Associates has been chronicling that sentiment for a quarter century and over that span of time has tracked movements in confidence that mostly seem to mirror the markets, rather than any real cognizance of retirement preparations. Indeed, the RCS has routinely found that fewer than half of the survey respondents have made even a single attempt — including guessing — to ascertain their retirement needs.

It’s not that confidence about one’s retirement prospects isn’t a relevant consideration — but we shouldn’t equate an uninformed sense of that status with reality.

Comparisons of DB versus DC investment returns.

If ever there was an apples-and-oranges undertaking, it’s the comparison of defined benefit and defined contribution plan returns. The former is, of course, the return of a portfolio representing a single overriding investment philosophy designed to achieve a specific aggregate objective, and one overseen by a plan fiduciary (or plan fiduciary committee). The latter is little more than an aggregation of individually managed (or more frequently unmanaged) portfolios.

And yet, every so often someone wants to offer a comparison of the returns between the two as some kind of evaluation as to which is “better.”

In many of these comparisons, defined benefit portfolios have fared “better,” and the underlying explanation (implicit or explicit) for that differential has tended to be diversification (or “better” diversification), and in more recent years, lower fees have been credited. What we’re apparently supposed to draw from that is that DB plans are better-managed in terms of asset allocation by professionals, better able to negotiate lower fees than their DC counterparts, and generally provide a better return on investment. In other words, DB plans are “better.”

Now, I’m not saying that all, or even most, of those individually directed DC plan allocations are as well designed or maintained as those put in place by a DB investment committee, and however well negotiated it is, it’s hard to imagine that a DC plan with all its inherent complexities could (or should) get as good a deal on price as a DB offering. In fact, unless your defined benefit plan has a single participant, those programs have completely different objectives and timeframes.

You might as well be comparing a sports car to a Hummer; which is “better” depends on the distance, the terrain, the length of time you have to complete the journey, how much fuel you have — and how many people you have to transport.

Using average 401(k) balances as a proxy for retirement security.

If there is one number I wish our industry would quit publishing, it’s the average 401(k) balance. Here you have participants who may (or may not) have a DB program, who are of all ages, who receive widely different levels of pay, who work for employers that provide varying levels of match, and who live (and may retire) in completely different parts of the country. Frequently it is based only on the accumulations that have occurred during their tenure at an individual employer, and often only the balance that is found on the single recordkeeping system that is publishing the result. But in preparing this number, those widely varied circumstances are all slopped together to create — mush.

Worse than mush, actually. Because it is an average of so many varied circumstances, the result is almost never “enough” to provide anything remotely resembling an adequate source of retirement income, a point that is reiterated somewhat incessantly (and generally without the caveats about what it is an average of) in the press.

I’ll allow that some of the permutations of this calculation — such as when we see that average broken down by age demographic — can be instructive as to longer-term trends, but an average 401(k) balance is akin to an average reviewer rating on Amazon.com.

As with everything else on my “huh?” list, it’s mathematically accurate — and nearly completely useless.

- Nevin E. Adams, JD

Are the Panthers a Portfolio Pick?

Will your portfolio pick up with the Panthers, or will it get bucked by the Broncos?

That’s what adherents of the so-called Super Bowl Theory would likely predict. The Super Bowl Theory holds that when a team from the old National Football League wins the Super Bowl, the S&P 500 will rise, and when a team from the old American Football League prevails, stock prices will fall.

It’s a “theory” that has been found to be correct nearly 80% of the time — for 39 of the 49 Super Bowls, in fact.

It certainly proved to be the case this past year, following Super Bowl XLIX, when the New England Patriots bested the Seattle Seahawks 28-24 to earn their fourth Super Bowl title. It also “worked” in 2014, when the Seahawks bumped off the Denver Broncos, a legacy AFL team, and in 2013, when a dramatic fourth-quarter comeback rescued a victory by the Baltimore Ravens — who, though representing the AFC, are technically a legacy NFL team via their Cleveland Browns roots. Admittedly, the fact that the markets fared well in 2013 was hardly a true test of the Super Bowl Theory since, as it turned out, both teams in Super Bowl XLVII — the Ravens and the San Francisco 49ers — were NFL legacy teams.

However, consider that in 2012 a team from the old NFL (the New York Giants) took on — and took down — one from the old AFL (the New England Patriots, who once were the AFL’s Boston Patriots). And, in fact, 2012 was a pretty good year for stocks.

Steel ‘Curtains’?

On the other hand, the year before that, the Pittsburgh Steelers (representing the American Football Conference) took on the National Football Conference’s Green Bay Packers — two teams that had some of the oldest, deepest and, yes, most “storied” NFL roots, with the Steelers formed in 1933 (as the Pittsburgh Pirates) and the Packers founded in 1919. So, according to the Super Bowl Theory, 2011 should have been a good year for stocks (because, regardless of who won, an NFL team would prevail). But as you may recall, while the Dow gained ground for the year, the S&P 500 was, well, flat.

There was the string of Super Bowls where the contests were all between legacy NFL teams:

• 2006, when the Steelers bested the Seattle Seahawks;
• 2007, when the Indianapolis Colts beat the Chicago Bears 29-17;
• 2009, when the Pittsburgh Steelers took on the Arizona Cardinals, who had once been the NFL’s St. Louis Cardinals; and
• 2010, when the New Orleans Saints bested the Indianapolis Colts, who had roots back to the NFL legacy Baltimore Colts.

The markets were higher in each of those years.

As for 2008? Well, that was the year that the NFC’s New York Giants upended the hopes of the AFL-legacy Patriots for a perfect season, but it didn’t do any favors for the stock market. In fact, that was the last time that the Super Bowl Theory didn’t “work.”

Patriot Gains

Times were better for Patriots fans in 2005, when they bested the NFC’s Philadelphia Eagles 24-21. According to the Super Bowl Theory, the markets should have been down that year. However, the S&P 500 climbed 2.55%. Of course, Super Bowl Theory proponents would tell you that the 2002 win by those same New England Patriots accurately foretold the continuation of the bear market into a third year (at the time, the first accurate result in five years). But the Patriots’ 2004 Super Bowl win against the Carolina Panthers (the one that nobody remembers because it was overshadowed by Janet Jackson’s infamous “wardrobe malfunction”) failed to anticipate a fall rally that helped push the S&P 500 to a near 9% gain that year, sacking the indicator for another loss.

Bronco ‘Busters’

Consider also that, despite victories by the AFL-legacy Denver Broncos in 1998 and 1999, the S&P 500 continued its winning ways, while victories by the NFL-legacy St. Louis (by way of Los Angeles) Rams and the Baltimore Ravens did nothing to dispel the bear markets of 2000 and 2001, respectively.

In fact, the Super Bowl Theory “worked” 28 times between 1967 and 1997, then went 0-4 between 1998 and 2001, only to get back on track from 2002 on (purists still dispute how to interpret Tampa Bay’s 2003 victory, since the Buccaneers spent their first NFL season in the AFC before moving to the NFC).

Indeed, the Buccaneers’ move to the NFC was part of a swap with the Seattle Seahawks, who did, in fact, enter the NFL as an NFC team in 1976 but shuttled quickly over to the AFC (where they remained through 2001) before returning to the NFC.¹ And, not having entered the league until 1976, regardless of when they began, can the Seahawks truly be considered a “legacy” NFL squad? Bear in mind as well, that in 2006, when the Seahawks made their first Super Bowl appearance — and lost — the S&P 500 gained nearly 16%.

As for Sunday’s contest, the “line” has been a bit volatile, though the Panthers seem to be hanging in as 6-point favorites. For the third year in a row, the Super Bowl will feature the two No. 1 seeds in the big game – and, perhaps not surprisingly as a result, four of the last five Super Bowls have come down to the last play.

Jersey ‘Sure’?

The Broncos are 0-4 all-time wearing their orange jerseys in the Super Bowl — but they’ll be wearing white this Sunday. The Panthers might be glad to be in their dark jerseys — they were wearing white in their single Super Bowl appearance, a loss. On the other hand, believe it or not, 10 of the last 11 Super Bowl winners were wearing white jerseys, according to CBS Sports.

All in all, it looks like it will be a good game. And that — whether you are a proponent of the Super Bowl Theory or not — would be one in which regardless of which team wins, we all do!

Nevin E. Adams, JD

1. In fact, Seattle is the only team to have played in both the AFC and NFC Championship Games, having relocated from the AFC to the NFC during league realignment prior to the 2002 season. The Seahawks are the only NFL team to switch conferences twice in the post-merger era. The franchise began play in 1976 in the NFC West division but switched conferences with the Buccaneers after one season and joined the AFC West.

7 New Year’s Resolutions for Plan Sponsors

This is the time of year when resolutions for the cessation of bad behaviors and the beginning of better ones are in vogue. Here are mine for plan sponsors.

Put your fund menu on a diet.

Though it is a point often made with jellies and ice cream, a long-standing behavioral finance tenet is that more choice doesn’t lead to better decisions. So what’s with those burgeoning 401(k) investment menus? Plan sponsors tend to offer more than 11 investment options in their DC plans, with 38% offering 11 to 15 options and 45% offering more than 16 options, according to the Rocaton/Pensions & Investments 2015 Survey of Defined Contribution Viewpoints study, which polled more than 400 plan sponsors and other industry professionals.

Odds are that you have funds on your menu that either aren’t being used or being used widely — options that contribute little other than clutter to your investment review and to the decisions of your participants. Take a look — your retirement plan menu shouldn’t be a kitchen sink “solution.”

If you don’t yet auto-enroll workers in your plan, it’s time to start.

There are a lot of reasons given to not initiate automatic enrollment: the notion that these are voluntary, not mandatory benefits; that you don’t want to be too paternalistic; that you don’t want to create a burden for someone who will then have to take steps to unenroll; or perhaps that most commonly cited concern — that by defaulting someone into the plan you will wind up with an angry employee darkening your door. It won’t.

Besides, how much time, energy and expense are you dedicating to the process of encouraging workers to enroll in the plan voluntarily?

If you do auto-enroll participants, raise the bar: Pump up that default to 6%, not 3%, of pay.

We all know that 3% isn’t “enough” to provide retirement security. That said, it remains the most common auto-enroll default rate, doubtless because it is the rate specifically stated in the Pension Protection Act (though it doesn’t prohibit a higher rate). Indeed, since the advent of the concept in the early 1980s, 3% has been the most typical rate, both because it was cited in an IRS example of the concept, and because it has been deemed low enough that it wouldn’t create a financial burden and/or a threshold high enough to warrant an opt-out on the part of the participant.

But if you’ve been doing automatic enrollment for a while now, you’ve had a chance to shake out those adoption “bugs” and to get a feel for how it has affected your participation rate, your match dollars and employee morale. And even if you haven’t done automatic enrollment, why start with a default rate that you know is bound to come up short?

Surveys suggest that there is very little difference in participant opt-out rates between 3% and 6%. But there is a great deal of difference in the retirement outcomes between the two.

Give reenrolling a second thought — and your workers a second chance.

There is perhaps a natural human tendency to impose a new approach/regimen from a point in time forward, to apply a new approach in plan enrollment like automatic enrollment only prospectively, only to workers who join the company after the point in time at which it is effective. And sure, workers who have had their chance to enroll voluntarily may well, in their refusal to do so, have spoken their intent not to participate at a previous point in time.

However, that was then and this is now. If they don’t want to participate, it’s easy enough to opt out. But maybe they didn’t fill out that form the last time because they forgot to, because the investment menu was too complicated or intimidating, or maybe the valid reason(s) they had then no longer apply.

Regardless, don’t you owe them the same opportunity that you are giving your new hires?

Rethink the composition of your investment committee.

People find themselves on plan committees for any number of reasons, good and… not so good. Regardless, this shouldn’t be a position of “honor.” It should be reserved to those who have the knowledge to make sound fiduciary determinations, the courage to make tough choices and the discipline to keep a written record of those choices. They should do so with a full appreciation of the personal liability that comes with their role as a plan fiduciary and a commitment to not only prepare for these deliberations ahead of the committee meeting, but to take their participative role and attendance at these meetings seriously.

And if you don’t have an investment committee, you should resolve to fix that this year as well.

If you don’t know how much you’re paying for your retirement plan, find out.

As a plan fiduciary, you are expected to ensure that the plan pays no more than reasonable expenses for the services rendered to the plan. To do so, you must know the services rendered, who renders them, how they are rendered, and what fee(s) are paid for them. And then you have to decide if it’s reasonable. But if you don’t know the first part, you can’t determine the last. And if you can’t do that, you aren’t fulfilling your duties as a plan fiduciary.

And that could be trouble. For you, and the plan.

Unless you’re an expert in retirement plan design, fiduciary responsibility and investments, get help.

Nuff said. In fact, you might want to start here. It could make fulfilling those New Year’s Resolutions all the easier…

See also 6 Questions to Ask at Your Next Investment Committee Meeting.

- Nevin E. Adams, JD

Naughty or Nice?

A few years back — when my kids still believed in the reality of Santa Claus — we discovered an ingenious website.

This was a website that purported to offer a real-time assessment of your “naughty or nice” status.

Now, as Christmas approached, it was not uncommon for us to caution our occasionally misbehaving brood that they had best be attentive to how those actions might be viewed by the big guy at the North Pole. But nothing ever had the impact of that website — if not on their behaviors (they were kids, after all), then certainly on the level of their concern about the consequences.

In fact, in one of his final years as a “believer,” my son (who, it must be acknowledged, had been particularly naughty that year, and he knew it) was on the verge of tears, worried that he’d find nothing under the Christmas tree but the nuggets of coal in his stocking he so surely deserved.

Bad Behaviors?

With so many reports purporting to chronicle the sorry state of retirement confidence and lack of preparations (think the two might be connected?) among Americans, it seems that many participants act as though some kind of benevolent elf will drop down their chimney with a bag full of cold cash from the North Pole on retirement’s eve. They behave as though, somehow, their bad savings behaviors — and incessant warnings — throughout the year(s) notwithstanding, they’ll be able to pull the wool over the eyes of a myopic, portly gentleman in a red snow suit.

Ultimately, the volume of presents under our Christmas tree never really had anything to do with our kids’ behavior, of course. As parents, we nurtured their belief in Santa Claus as long as we thought we could (without subjecting them to the ridicule of their classmates), not because we expected it to modify their behavior (though we hoped so from time to time), but because we believed that kids should have a chance to believe, if only for a little while, in those kinds of possibilities.

We all live in a world of possibilities, of course. But as adults we realize — or should realize — that those possibilities are frequently bounded in by the reality of our behaviors, be they “naughty” or nice. This is a season of giving, of coming together, of sharing with others. However, it is also a time of year when we should all be making a list and checking it twice — taking note, and making changes to what is naughty and nice about our savings behaviors.

Yes, Virginia, there is a Santa Claus — but he looks a lot like you, assisted by “helpers” like the employer match, your financial adviser, investment markets and the tax incentives that encourage workplace retirement plans and your ability to save.

Happy Holidays!

- Nevin E. Adams, JD

p.s. The Naughty or Nice site is still online (at http://www.claus.com/naughtyornice/index.php.htm), and it now includes suggestions for how to improve your standing, should that be required. Those looking for suggestions on how to improve your savings standings can check out www.choosetosave.org, along with the Ballpark E$timate, to see how you’re doing!

6 Tips on Shopping for a Provider

My single memory of venturing out on Black Friday to shop came at the instigation of my “little” sister, who has long undertaken such forays. Nor was this to be a random shopping expedition — armed with circulars and coupons, she directed me and my two brothers with the fervor and furor of General Patton as to which stores we were to invade, the objective(s) of these intrusions, and in some cases, the line(s) in which we would take up residence while she pursued items she (apparently) did not trust to the pursuit of mere amateurs.

Shopping for a new provider is not something one would normally compare with a Black Friday foray, but if you have a plan sponsor — or plan sponsor prospect — who’s thinking about shopping for a new provider, here’s a list they may find useful.

Make a list — and yes, check it twice.

In an area fraught with as much potential complexity as searching for a retirement plan provider, it’s easy to think you’ll learn what you need to look for by simply going through the process. Though learn you will, shopping for a retirement plan provider without a sense of your core needs is a bit like going grocery shopping on an empty stomach; everything will sound good, and you’ll likely overload on “sweets.” Santa Claus makes a list — so should you: of plan design features (real and anticipated) that you want supported.

Know your pain points — and be ready to share them.

If you’ve had a plan in place before, you have almost certainly experienced at least one bump in the road, and perhaps several (and perhaps more than a mere “bump”). At the core of those experiences is something someone either did or didn’t do that contributed to the problem(s). Or maybe you simply have certain areas of sensitivity. Regardless, make sure you’ve detailed those, and be certain to share them with potential providers, preferably with a preface of “what procedures/protocols do you have in place to prevent something like….”

Have — and know — your budget.

These services aren’t free, though they may well be packaged in such a way that the plan sponsor doesn’t have to write a check. At a minimum. know how much you are able — and willing — to pay. And while you’re at it, you’d be well advised to be attentive to the cost(s) of the plan, who’s going to be pay them, and how those who provide services to the plan will be paid, and by whom.

Remember that provider rankings are only a starting point.

Think about it — an unknown number of plan sponsors about which you know nothing in terms of complexity of plan design, capabilities of staff or breadth of perspective/experience or tenure with the provider rate those provider capabilities, and from that a satisfaction score is gleaned.

It’s not a bad place to start — but like those rankings on Amazon, they have a limited value in predicting your satisfaction with that platform. They’ll likely affirm your preexisting preferences or fuel your imbedded concerns, but they aren’t much benefit in creating new ones.

Trust — but verify — references.

Proffered references are, almost by definition, going to be positive. (If they aren’t, and aren’t positioned as negative, that will tell you something valuable about the provider who provided them.) But having taken the time to request them, you shouldn’t assume that no value can be gleaned. Press for references that are like you in terms of plan size, design and complexity. Try to get someone who has converted to their platform in the past year — better still, someone who has left that platform in the past year (though it will likely be due to M&A activity, not service or fees). And ask them what questions they wished they had asked when they went through their process. If you ask them if they are satisfied, they’ll likely say they are. The question is, should they be? And will you be?

Get help.

Unless you are a serial provider shopper, odds are you aren’t an expert at the business of shopping for a provider. It is a complicated and time-consuming process, with an abundance of opportunities for disconnect in expectations simply because you don’t ask the right question(s). As an ERISA fiduciary, you are expected to review (and subsequently monitor) those that provide services to the plan with the skill and expertise of a prudent expert. If you lack that, you are expected to engage the services of someone who does.

Or else run the risk of winding up with a lump of coal.

- Nevin E. Adams, JD

The 5 W’s: A New Plan Fiduciary Perspective

The Five Ws (or as they are sometimes called, Five W’s and one H) are questions whose answers are considered basic in information gathering in a variety of settings.

There are a lot of questions that plan fiduciaries should ask, but here are five W’s and an H that every new plan fiduciary — or every “old” fiduciary who is new to a plan — should ask.

Who are the (other) plan fiduciaries?

Fiduciary status is based on your responsibilities with the plan, not your title. If you have discretion in administering and managing the plan, or if you control the plan’s assets (such as choosing the investment options or choosing the firm that chooses those options), then you are a fiduciary to the extent of that discretion or control. And, if you are able to hire a fiduciary, then you’re (probably) an ERISA fiduciary because the power to put others in a position of power regarding plan assets is as critical — and as responsible — as the ability to make decisions regarding those investments directly.

But assuming for a second that you are a plan fiduciary, it’s important to know who the other fiduciaries are for the simple reason that all fiduciaries have potential liability for the actions of their co-fiduciaries. If a fiduciary knowingly participates in another fiduciary’s breach of responsibility and conceals that breach or does not take steps to correct it, then both are liable.

What does the plan cost?

Ever made a hotel reservation or rented a car, only to find that the final bill reflected a price that was significantly higher than the price quoted on the firm’s website or in their promotional materials? Sometimes those extra charges are arguably beyond the control of the provider (sales taxes, special local room taxes, etc.), and sometimes — well, sometimes you just feel that the only reason they charged those the way they did was to obscure the actual cost of what you thought you were buying until they had already charged your credit card.

401(k) fees can feel a little like that, in that some fees are explicit, some are implicit, and some are transactional, meaning that they only show up when certain transactions occur (e.g., loans). Odds are that you are familiar with the explicit fees, and you may well be familiar with certain aspects of the implicit ones too. For example, you may know the basis points charged by the funds on your investment menu, on average if not specifically. But when was the last time you multiplied those basis point charges times the dollar value of assets in those funds?

Those fees might not seem like much — and may, in fact, seem “reasonable” expressed as basis points. But do the math and you might be surprised — especially if your plan assets have been growing. (As a reminder, the fiduciary admonition is that the fees and services must be reasonable, and the reasonability of fees charged should certainly be viewed in the context of the services rendered.)

That said, there’s nothing like bringing it down to an individual account level to really put fees in a “real world” perspective. So whether you actually have an “average” participant or need to create one, take the time to figure out how much they are paying for their retirement plan each year. And then ask yourself whether, if they knew that, they would they feel it was “reasonable”? If the answer is “no,” you either have some communications work, or some fee negotiations, ahead.

When was the plan document last updated?

Having a plan document is one thing, finding it (sometimes) another. But if that document isn’t updated to reflect the latest legal requirements — well, that’s a problem.

Where is the plan document (or at least a copy of it)?

On your way to figure out when your document was last updated, you’ll also have an opportunity to locate it. Like most legal documents, plan documents can be rather tedious to read, much less understand. And, like most legal documents, the longer they are in place, the more changes (particularly changes imposed by law, rather than by specific intent) tend to be appended separately, rather than incorporated, making them even more difficult to read, much less understand.

This frequently results in other documents — sometimes those as “official” as a summary plan description, sometimes as ad hoc as a plan sponsor’s “cheat sheet” — being the actual reference for plan administration. There’s nothing wrong with that, of course — unless or until those “other” documents reflect something other than what the actual plan document provides, since plan fiduciaries are accountable for ensuring that the plan is administered in accordance with the plan document. Thus, knowing what the plan document says (and where it can be found so that you can be sure you know what it says) is crucial.

How much insurance coverage do you have?

As an ERISA fiduciary, your legal liability is personal. While employers routinely carry professional liability insurance (sometimes called errors and omission insurance), in most cases that won’t cover ERISA claims. While fiduciary liability coverage is not required by ERISA, plan fiduciaries are well advised to not only see that this separate coverage is obtained, but to verify the conditions and limits of the policy.

Why do we offer this workplace retirement plan?

The kneejerk response to this question is almost always, “to attract and retain qualified workers.” While benefits matter, and can matter significantly depending on individual circumstances, most surveys suggest that benefits, and specifically retirement benefits, are a secondary consideration.

These programs do have costs, of course: the time and effort to administer the program, the costs of the plan itself, the dollars invested in an employer match, and your time (and exposure to liability) as a plan fiduciary. Those costs may pale in comparison to other programs you are expected to oversee — and the return, that ever-present obsession with ROI, may be years down the road.

Still, anything worth doing is worth doing right. And doing a workplace retirement plan “right” generally starts with having concrete goals and objectives: a specific rate of participation, a quantified level of individuals taking full advantage of the employer match, a definite number with appropriate asset allocations in place, perhaps even an established focus on individual retirement readiness.

Regardless of your goals, and how you strive to achieve them, if you don’t know why the plan is offered in the first place, you may well find yourself lacking the principles that every busy plan fiduciary needs, sooner or later, to keep conflicting priorities in balance — and yourself out of trouble.

- Nevin E. Adams, JD 

A Retirement Industry Thanksgiving List

Thanksgiving is a special time of year — and one on which it seems fitting to reflect on all for which we should be thankful. Here’s my 2015 list:

I’m thankful that so many employers voluntarily choose to offer a workplace retirement plan — and that so many workers, given an opportunity to participate, do.

I’m thankful that so many employers choose to match contributions or to make profit-sharing contributions (or both). Without those matching dollars, many workers would likely not participate or contribute at their current levels — and they would surely have far less set aside for retirement.

I’m thankful that the vast majority of workers defaulted into retirement savings programs tend to remain there — and that there are mechanisms (automatic enrollment, contribution acceleration and qualified default investment alternatives) in place to help them save and invest better than they might otherwise.

I’m thankful that trends that suggest that more plan sponsors are extending those mechanisms to their existing workers as well as new hires.

I’m thankful for qualified default investment alternatives that make it easy for participants to create well-diversified and regularly rebalanced investment portfolios — and for the thoughtful and on-going review of those options by prudent plan fiduciaries.

I’m thankful that participants, by and large, continue to hang in there with their commitment to retirement savings, despite lingering economic uncertainty and competing economic interests, such as rising health care costs and college debt.

I’m thankful that the federal government remains willing to postpone taxing pay that Americans postpone taking (and spending) by saving for retirement.

I’m thankful that a growing number of policy makers are willing to admit that the “deferred” nature of 401(k) tax preferences are, in fact, different from the permanent forbearance of other tax “preferences” — even if governmental accountants and certain academics remain oblivious.

I’m thankful that the “plot” to kill the 401(k)… hasn’t. Yet.

I’m thankful that those who regulate our industry continue to seek the input of those in the industry — and that so many, particularly those among our membership, take the time and energy to provide that input. I’m hopeful, particularly in areas like the fiduciary proposal, that the final product will reflect that input.

I’m thankful for objective research that validates the positive impact that committed planning and preparation for retirement makes. I’m thankful for the ability to take to task here research that doesn’t live up to those objective standards.

I’m thankful for the warmth with which readers and members, both old and new, continue to embrace the work we do here. I’m thankful for all of you who have supported — and I hope benefited from — our various conferences, education programs and communications throughout the year. I’m thankful for the constant — and enthusiastic — support of our Firm Partners and advertisers.

I’m thankful for the team here at NAPA (and the American Retirement Association, generally), and for the strength, commitment and diversity of the membership. I’m thankful to be part of a growing organization in an important industry at a critical time. I’m thankful to be able, in some small way, to make a difference.

But most of all, I’m once again thankful for the unconditional love and patience of my family, the camaraderie of dear friends and colleagues, the opportunity to write and share these thoughts — and for the ongoing support and appreciation of readers like you.

Here’s wishing you and yours a very happy Thanksgiving!

- Nevin E. Adams, JD

6 Things Boomers Need to Know About Saving for Retirement

Several weeks back, I wrote a column entitled, “5 Things Millennials Need to Know About Saving for Retirement.” But what about those at the brink of retirement?

Retirement seems close — perhaps too close for the comfort of Boomers, some of whom have already begun cycling into retirement. In fact, the youngest element of this cohort (born in 1964) is now already 51, and it’s said that 10,000 Boomers roll into retirement every day.

That said, whether you’ve been saving or not, or not saving enough — here are six things Boomers need to know about saving for retirement.

1. Social Security won’t be as much as you think it will be.

When you were your kids’ age(s), you too were likely disdainful about the long-term prospects for Social Security (and hey, your kids weren’t around for the real funding crisis back in the early 1980s!). That said, you’re not only close enough to collecting; many of you are probably in the age group where when politicians talk about making changes, they’re careful to assure you that yours won’t be changed.

However, even if one assumes that the program remains largely unchanged from what it pays today, if you retire at full retirement age in 2015, your maximum benefit would be $2,663 a month, according to the Social Security Administration. Those who retire at age 62 (and many of today’s workers do, not realizing that waiting can translate into larger benefits) in 2015, your maximum benefit would be $2,025; and if you retire at age 70 in 2015, it would be $3,501.

Now those amounts are based on earnings at the maximum taxable amount for every year after age 21. In other words, that’s probably more than most of us would get. In fact, the average monthly Social Security retirement benefit for January 2015 was $1,328. Note that the maximum benefit depends on the age a worker chooses to retire, among other things — and that assumes that the current questions regarding Social Security’s longer-term financial viability are addressed, and/or that current benefit levels aren’t reduced.

2. Not everyone has a pension, and you probably don’t. And if you do, it probably isn’t a full pension.

Now, by “pension” I mean the traditional defined benefit (DB) pension plan, one that, in the private sector anyway, was largely employer funded. According to the nonpartisan Employee Benefit Research Institute (EBRI), in 2011, just 3% of all private-sector workers participated only in a DB plan, and 11% had both a defined contribution (DC) plan and a DB plan. So, only something like 14% of workers in the private sector still have a traditional pension plan (even then, it doesn’t mean there’s no reason for concern; see “3 Pervasive Retirement Industry Myths”).

That said, you’ve been in the workforce long enough (and during the right time) that you might actually have a pension, or at least a piece of one. Here’s the thing: People talk like the Millennials invented rapid job turnover, but the reality is that job tenure statistics have been relatively consistent going all the way back to the 1950s. What that means is that lots of workers who were “covered” by a pension plan didn’t work at those employers long enough to vest in that pension, or at least not long enough to vest fully. So, look back through your work history, check and see if those employers offered a pension. And you might want to check out thismissing pension tool from the Pension Benefit Guaranty Corporation (PBGC).

3. You won’t be able to work as long as you think.

I’m sure there are days when you would love nothing more than to be able to stay in bed (or at least not go to work). But industry surveys continue to suggest that not only do people expect to work longer, their retirement savings calculations seem to depend on it.

You hear people talk about 65 as the “normal” retirement age, even though it’s no longer that, even for Social Security benefits (aside from the reality that many still start collecting at age 62, unless you were born before 1943, your normal retirement age is 66 or older — you can check yours out here.)

Meanwhile, EBRI’s Retirement Confidence Survey (RCS) has consistently found that a large percentage of retirees leave the workforce earlier than planned — 49% of them in 2014, for example. Many who retire earlier than they had planned often do so for negative reasons, such as a health problem or disability (61%), though some state that they retired early because they could afford to do so (26%).

The bottom line: You probably shouldn’t count on being able to work as long as your finances may require. And that may require cutting back in the here-and-now in the interests of the there-and-then.

4. You could be missing out on ‘free’ money.

When you started working, if your employer offered a DC plan, you had to fill out a form in order to participate (you probably even had to wait a year), make investment choices, etc. These days a growing number of employers automatically enroll eligible workers in these plans, direct their savings into a default investment alternative, and even automatically increase that initial deferral rate each year. But even among those employers, most only automatically enroll new hires, not existing hires. And that could mean that even if you work for one of those employers, you might have been overlooked by these “auto” enrollment programs — and you might still need to go get one of those enrollment forms (or visit the plan’s website).

Your savings may well be matched by your employer (see “6 Things 401(k) Participants Need to Know”), so even if you’ve missed out on years of the opportunity to save and have those savings matched, there’s no time like the present to start — and start as aggressively as you can. After all, time is — literally — money.

5. You can use catch-up contributions to catch up.

Thanks to a provision in the tax code, individuals who are age 50 or older at the end of the calendar year can make annual catch-up contributions; up to $6,000 in 2015 and 2016 may be permitted 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.

6. It’s not too late to start.

The reality is, without a sense of where you stand, what resources you have available, what your needs are and how long you have to prepare, it’s impossible to figure out the best way forward. But it starts with figuring out how much you’ll need. And for that, you might check out EBRI’s Ballpark E$timate — it’s free and easy to use. Then gather up those 401(k) statements, those IRA accounts, check for missing pension balances, and start saving!

- Nevin E. Adams, JD

7 Things You May Not Know About the Saver’s Credit (and 4 You Should)

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 so-called 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.

Here are some things you may not know about the Saver’s Credit:

The official name for the Saver’s Credit is actually the Retirement Savings Contributions Credit.

A wide variety of retirement savings contributions qualify.

The Saver’s Credit can be taken for contributions to a traditional or Roth IRA (including MyRA), a 401(k), SIMPLE IRA, SARSEP, 403(b), 501(c)(18) or governmental 457(b) plan, as well as voluntary after-tax employee contributions to qualified retirement and 403(b) plans.

There are two deadlines for contributions.

To qualify for the Saver’s Credit, contributions must be made to 401(k)s, 403(b)s, 457s or the federal government’s Thrift Savings Plan by the end of the calendar year. However, retirement savers have until April 15, 2016, to make an IRA contribution that could qualify them for the Saver’s Credit for tax year 2015.

The Saver’s Credit is (still) not available via the 1040 EZ form (though there have been legislative attempts to remedy that situation.

Rollover contributions aren’t eligible for the Saver’s Credit.

Eligible contributions may be reduced by any recent distributions (for 2015, distributions received after 2012, and before the due date of the 2015 return, including extensions) from a retirement plan or IRA (a list of these distributions is available here.)

The adjusted gross income limits for eligibility are higher for 2016.

While most contribution and benefits limits were not adjusted for 2016, the income limits for the Savers Credit were adjusted higher (a table outlining those changes, as well as the limits for 2015 is available here).

And some things you may know (but are worth repeating)…

The amount of the credit is 50%, 20% or 10% of retirement plan or IRA contributions up to $2,000 ($4,000 if married filing jointly), depending on adjusted gross income (reported on your Form 1040 or 1040A).

It is a credit — a dollar-for-dollar reduction of tax liability. If the standard or itemized deductions or personal exemptions eliminate tax liability, you can’t claim the Saver’s Credit. Moreover, it can’t be carried forward to the next year. Nor can you get a tax refund based only on the amount of the Saver’s Credit.

In order to claim the credit, individuals must be 18 years or older, must not be a full-time student, and cannot be claimed as a dependent on another person’s return.

You only get the credit if you file for it. It’s not too late to save and get “credit” for doing so — make sure the participants you work with, and plan sponsors you work for — are aware.

Additional information about the Savers Credit is available here:
https://www.irs.gov/Retirement-Plans/Plan-Participant,-Employee/Retirement-Savings-Contributions-Savers-Credit
https://www.irs.gov/uac/Newsroom/Plan-Now-to-Get-Full-Benefit-of-Saver%E2%80%99s-Credit
https://www.irs.gov/uac/Save-Twice-with-the-Savers-Credit

5 Reasons Why More Plans Don’t Offer Retirement Income Options

A frequent commentary on today’s plan designs is that they are more focused on accumulation than the eventual spend-down of those savings.

It’s said that defined contribution plans too often not only facilitate lump-sum distributions, but, in design at least, encourage them. And yet, despite a growing awareness of the importance of retirement income planning,PLANSPONSOR’s 2014 DC Survey finds that nearly half of plan sponsors offer no income-oriented products to their participants.

Here’s five reasons plan sponsors give for not offering retirement income options.

1. There is no legal requirement to provide a lifetime income option.

Let’s face it, it’s a full-time job just keeping up with the plan provisions, standards, participant notices and nondiscrimination tests that are required by law. The notion that a plan sponsor would, in the absence of a compelling motivation take on extra work, and work that carries with it additional financial and fiduciary responsibility as well, doesn’t seem very realistic.

That said, plan sponsors — particularly larger plan sponsors — take on plenty of other plan design changes that aren’t forced on them, most notably the automatic enrollment designs outlined in the Pension Protection Act of 2006.

However, with no obligation to provide this offering, and an underlying concern that providing the option does involve taking on additional liability.

2. The safe harbor for selecting an annuity provider doesn’t feel very “safe.”

I’ve never met a plan sponsor who felt that the guidance on offering in-plan retirement income options was “enough.”

I’m not saying they’re not out there – clearly there are in-plan options available in the marketplace now, and thus, logically, there are plan sponsors who have either derived the requisite assurances (or don’t find them necessary). Or who feel that the benefits and/or participant need for such options makes it worth the additional considerations. That said, industry surveys indicate that only about half of defined contribution plans provide an option for participants to establish a systematic series of periodic payments, much less an annuity or other in-plan retirement income option, and that’s following the 2008 safe harbor regulation from the Labor Department regarding the selection of annuity providers under defined contribution plans.

That said, earlier this year, the Labor Department in Field Assistance Bulletin (FAB) 2015-02, acknowledged that they had heard those concerns, and offered some insights on how to “reconcile the ‘time of selection’ standard in the safe harbor Rule — which embodies the general principle that the prudence of a fiduciary decision is evaluated under ERISA based on the information available at the time the decision was made — with ERISA’s duty to monitor and review certain fiduciary decisions.”

Part of this additional clarity was the point that the plan fiduciary among other things appropriately concludes that, at the time of the selection [emphasis added in the DOL’s FAB], the annuity provider is financially able to make all future payments under the annuity contract and the cost of the annuity contract is reasonable in relation to the benefits and services to be provided. “At the time of the selection” is further defined as the time that the annuity provider and contract are selected for distribution of benefits to a specific participant or beneficiary; or the time that the annuity provider is selected to provide annuities as a distribution option for participants or beneficiaries to choose at future dates.

I’m not saying that is “enough” — but clearly the Labor Department is listening, and trying to close that comfort gap. And if you haven’t yet read FAB 2015-02, you should.

3. Operational and cost concerns linger.

While several industry providers have offered what seem to be workable, effective solutions to the “portability problem,” plan sponsors remain concerned that the cost and complexity of transitioning these offerings — either by individual plan participants, or the plan itself — would be daunting, at best.

4. Participants don’t take advantage of the option when offered.

The so-called “take up” rates among participants can be sliced in different ways — by provider (the options are varied, after all), by participant age, even by the involvement of the employer in positioning in the option — but however you parse it, the word I’ve generally heard to describe participant adoption rates is… ”disappointing.”

Now, that kind of response hasn’t stopped plans from putting in options like self-directed brokerage accounts (SBDAs) over the years (on the other hand, the participants who were embracing SDBAs tended to be fairly influential voices).

And there is evidence that even defined benefit plan participants, given the choice between taking a lump sum or an annuity, often go for the former. That said, a study by the non-partisan Employee Benefit Research Institute (EBRI) also supports the notion that plan design matters, and matters to a large extent, a large extent, drives annuitization decisions.

5. Participants aren’t asking for it.

Once you’ve walked through all the objections to in-plan retirement income options, it all seems to come down to this. Despite industry surveys that suggest worker interest in the concept (if not the reality) of retirement income solutions, it never seems to get to the level of expressing that interest to those who actually make retirement plan design decisions.

Plan design can surely help steer participants toward these options, but most advisors I’ve spoken with say that, for a variety of reasons (cost, complexity) these retirement income options are still sold, and not bought.

Sure, most plan sponsors acknowledge that participants (certainly older, longer-tenured participants) could use the kind of help that a retirement income structure could provide, and yes, plan sponsors are looking for a more secure safe harbor, and they’d certainly welcome a PPA-ish “nudge” in that direction.

But until it becomes an articulated concern for the workers they hope to attract, retain and eventually retire from their workforce, it’s likely that the adoption rate — by plans and plan participants — will be slower than might be hoped.

- Nevin E. Adams, JD