Saturday, August 29, 2015

‘Tipping’ Points: 4 Ways to Tell a Fad from a Trend

One of the most valuable skills in my profession — and perhaps in any profession — is an ability to discern trends early. Just as valuable is the ability to discern the sometimes fine line of distinction between what may be a trend, and what may, in fact, be nothing more than a fad. Most plan sponsors have a functional aversion to the latter, and the vast majority have no real passion for being too early in the adoption of the former. After all, nowhere in the fiduciary directive to do only things that are in the best interests of participants and beneficiaries will you find an admonition to be “first.”

One must be careful in making generalizations about such things, of course. The difference between a fad and a trend is often no more than one of time and acceptance, after all, and each plan sponsor situation is based on hugely independent factors. Still, in working with plan sponsors over the years, I have found that a new idea/product can quickly evolve to become a trend if it:
  • is cheap (free is better);
  • is easy (the less effort, the better);
  • solves a problem (the bigger, and more immediate, the better); and
  • has regulatory/legislative sanction (the more official, the better).
As a corollary, things that cost money, seem complicated to adopt/incorporate, or that don’t address a current perceived problem will naturally be a harder sell. (I have never found that the removal of a potential threat — such as a lawsuit — is a compelling sales proposition.) But even if all the factors listed seem to apply, that new product/idea trend can be “trumped” by one simple factor — does it mean (or appear to mean) taking on additional risk (or costs) for the plan, or the plan sponsor? If so, all the other factors don’t really matter. Those are the “trends” that “the industry” says everyone should/will be embracing… and then nobody (much) does.

Little wonder then that things like daily valuation (which, certainly at the outset, seemed to be both cheap AND easy), burgeoning fund menus (which were easy to add, if not communicate/navigate) and, more recently, target-date funds (easy, solved a problem and, post-PPA, with regulatory and legislative backing) seem to become the “norm” almost overnight. Little wonder, too, that things like automatic enrollment (certainly prior to PPA, less so these days), and in-plan lifetime income options are harder sells. It also helps explain why things like offering advice or automatic enrollment can, over time, be seen in a new light, courtesy of developments in regulations and/or technology that serve to reweight the scales.

One More Thing

There is, however, one additional factor that influences plan sponsors in their decision-making process, and as odd as it may seem, it is a factor that influences most of us from a very young age. For as surely as plan sponsors are understandably reluctant to be first to embrace a new concept, as human beings we also have a tendency to go with the flow, to follow the crowd. Fads become trends sometimes for no reason other than the rationale offered by teenagers everywhere for occasionally aberrant behavior — because “everybody (else) is doing it.”

Plan sponsors rely on advisors not only to keep them abreast of current trends, but to help them cut through the clutter and “spin” of the latest hot product pitches. To help them fulfill their fiduciary obligations to act in the best interests of participants by providing access to services (and services at fees) that are reasonable for their needs.

Indeed, the best advisors stay aware and alert to new developments and opportunities — but resist the siren call of the crowd, helping plan sponsors understand both the pros and cons of new concepts, be they fads, trends or something in between.

- Nevin E. Adams, JD

Saturday, August 22, 2015

7 Things Every ERISA Fiduciary Should Know

When it comes to workplace retirement plans, there are three kinds of people: people who are ERISA fiduciaries and know it, people who aren’t ERISA fiduciaries and know it, and people who are ERISA fiduciaries and don’t know it.

If you’re in the first or last category — well, here are seven things that every ERISA plan fiduciary should know.

If you’re a plan sponsor, you’re an ERISA fiduciary.

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), you are a fiduciary to the extent of that discretion or control. If you’re not sure, there’s a good chance you are.

For the very most part, you can’t offload or outsource your ERISA fiduciary responsibility.

ERISA has a couple of very specific exceptions through which you can limit — but not eliminate — your fiduciary obligations. One has to do with the specific decisions made by a qualified investment manager — and, even then, you remain responsible for the prudent selection and monitoring of that investment manager’s activities on behalf of the plan.

The second exception has to do with specific investment decisions made by properly informed and empowered individual participants in accordance with ERISA Section 404(c). Here also, even if your plan meets the 404(c) criteria (and it is by no means certain it will), you remain responsible for the prudent selection and monitoring of the options on the investment menu (and, as the Tibble case reminds us, that obligation is ongoing).

Outside of these two exceptions, you’re essentially responsible for the quality of the investments of the plan — including those that participants make. Oh, and hiring a 3(16) fiduciary? You’re still on the hook as a fiduciary for selecting that provider.

If you’re responsible for selecting those who are on the committee(s) that administer the ERISA plan, you’re an ERISA fiduciary. If you are able to hire a fiduciary, you’re (probably) an ERISA fiduciary.

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.

Hiring a co-fiduciary doesn’t keep you from being an ERISA fiduciary.

All fiduciaries have potential liability for the actions of their co-fiduciaries. If a fiduciary knowingly participates in another fiduciary’s breach of responsibility, conceals that breach, or does not take steps to correct it, both are liable.

Your liability as an ERISA fiduciary is personal.

That’s right, the legal liability is personal (you can, however, buy insurance to protect against that personal liability — but that’s likely not the fiduciary liability insurance you may already have in place).

An ERISA fiduciary can’t just quit and walk away.

The Department of Labor cautions that “fiduciaries who no longer want to serve in that role cannot simply walk away from their responsibilities, even if the plan has other fiduciaries. They need to follow plan procedures and make sure that another fiduciary is carrying out the responsibilities left behind. It is critical that a plan has fiduciaries in place so that it can continue operations and participants have a way to interact with the plan.”

As an ERISA fiduciary, you’re expected to be an expert — or to hire help that is.

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.”

As an ERISA plan fiduciary, it’s never too late to start doing the right things the right way. But doing the right things means understanding what is expected of you — and appreciating the implications.

- Nevin E. Adams, JD

Saturday, August 15, 2015

Why the ‘Ideal’ Plan Isn’t Always

Advisors and providers often talk about the “ideal” plan — but ideal for what?

That’s a rhetorical question of sorts — generally it means “ideal” in terms of providing a better retirement savings outcome. Indeed, I routinely see articles and commentaries (and panel presentations) that self-righteously take employers to task for not “caring” enough about their workers (or their retirement outcomes) to do the “right” things.

While I think our industry views such observations as a challenge, a call to action, all too often I think policymakers and regulators — and certainly the 401(k) “haters” — hear a different message. While I suspect that one-on-one, most advisors allow for a more nuanced perspective on such things, at the risk of stirring up a little controversy, let me offer a different perspective on that “ideal” plan.

Extending Automatic Enrollment to All

Following the passage of the Pension Protection Act of 2006, with its automatic enrollment safe harbor, many likely assumed that plans which adopted the provision would do so for all eligible workers. And yet, nine years on, most industry surveys indicate that the majority (on the order of two-thirds) of automatic enrollment plans have extended that feature only to new hires.

This is a subject that I have broached with plan sponsors and advisors numerous times over the years. Most frequently I am told that there is a great reluctance to “second guess” the participation decisions of workers who have had multiple opportunities over the years to enroll and yet, for a variety of reasons, haven’t done so. And so, whether it’s attributed to “not wanting to insult their intelligence” or a simply willingness to “let sleeping dogs lie,” most plan sponsors I have spoken with simply find it easier (or less painful) to implement new things with “new” people.

One concern that is not generally articulated, but is surely a concern for some, is that automatic enrollment’s very success may be a financial impediment. Doubtless you’ve proudly promoted the surge in participation that embracing automatic enrollment produces. But have you considered what a 20% increase in participation by older, more tenured, and likely higher paid individuals would add to your typical benefits budget?

Automatic Enrollment — at 6%

By just about any measure — and in what has to be the vast majority of situations — starting participants off by deferring 3% of their pay won’t be enough to fund their retirement. It is a start, however, and a better start than many younger and lower-income workers would have in the absence of automatic enrollment (despite the periodic news items and research reports that suggest that automatic enrollment results in diminished savings rates).

There’s a flip side to that level, of course. While a 3% starting rate has the legislative imprimatur of the PPA, long before 2006 it had been widely accepted as a “standard” default rate precisely because it was deemed to be so small that workers wouldn’t take steps to stop their contributions. The experience of the past 30 years supports that premise.

As noted above, 3% is probably not enough — but in looking at the trends in automatic enrollment, 3% remains the “norm.” Moreover, participants tend not to modify that starting default. And since the adoption of automatic escalation noticeably lags the adoption of automatic enrollment, we run the risk of creating a new generation of sub-optimal savers.

Recognizing that disconnect, a growing number of people are calling for a higher starting default rate, generally 6%. Moreover, there many surveys have suggested that inertia is a strong enough force that participants aren’t much more inclined to opt out from a 6% default than they are from a 3% default.
And while a growing number of providers and advisors are touting it — and there are plan sponsors embracing that higher default rate — the vast majority aren’t.

So what’s behind the reluctance to raise the bar to 6%?

Honestly, I don’t think it’s hard to figure out. The reasons cited by plan sponsors vary, and while some still express concerns about employee pushback (see above), it seems fair to think that the typical 20% increase in plan participation rates, coupled with a commensurate increase in match costs, would give any rational plan sponsor pause, particularly to a level that would, in many circumstances, require the maximum employer matching dollars.

Stretch ‘Math’

For sponsors that have pushed back on the match cost associated with automatic enrollment, it’s gotten very trendy to push a “stretch” match. The logic goes like this: An employer that might be reluctant to expand participation (and its employer match) with a match of 50 cents on the dollar up to 6% of pay could instead offer a match of 25 cents on the dollar up to 12% of pay. The match structure is supposed to encourage participants (certainly those motivated by the employer match) to increase their contributions, but the cost of the match to the employer will be the same as under the prior formula.

Well, the math certainly works out. But we’re dealing with people, so let’s just admit that some number of those who contributed 6% to get the match won’t (and in some cases won’t be able to) contribute at the higher level.

But the larger problem — and one that is almost never acknowledged by proponents of the stretch match — is that once you’ve actually had a match program in place, “stretching” out the match is almost certain to be an employee relations disaster for the plan sponsor. The goal may be to keep the cost the same, but workers will almost certainly see the move as a reduction in benefits.

The Cost of Bad Retirement Outcomes

Ultimately the plan design alternatives outlined above don’t require employer involvement to be undertaken by employees, who can enroll on their own, and at levels higher than the standard “auto” defaults provide.

There is, of course, a cost associated with “bad” retirement outcomes: Workers who don’t have (or don’t think they have) enough retirement savings may seek to extend their tenure beyond that considered optimal for the employer. That can impact the employer’s health care costs and impede its ability to hire, retain and promote. And workers worried about their finances and retirement security may well be less productive.

So, yes, Virginia, that “ideal” plan has a price tag. And helping plan sponsors make “better” plan design decisions requires not only an acknowledgement of that fiscal reality, but creative solutions that take those considerations into account.

- Nevin E. Adams, JD

Saturday, August 08, 2015

3 Things Plan Sponsors Should Know About Changing Providers

By most industry estimates, approximately 10% of plans change providers every year.  Of course, far more consider making a change (without actually acting on it), and many changes are thrust upon plan sponsors, a consequence of poor service, or provider consolidation.

Regardless of the motivation for undertaking the change, here are three things that in my experience every advisor (and provider) wishes plan sponsors understood about recordkeeping conversions — before setting them in motion.

Your provider search will take longer than you think.

Human beings are, generally speaking, poor judges of time requirements, particularly with things with which they don’t have a lot experience (like provider searches) and that require the involvement/input of committees (like provider searches).

We tend to assume that we’ll have more time available for such things than actually winds up being the case, and we tend to assume that such things will take less time than they actually do. We also tend to make those types of assumptions about the participation of other members of the team. It’s not just that those assumptions tend to be optimistic, it’s that, all too frequently, they are wildly optimistic.

Your provider and/or advisor will likely make a good faith effort to provide a timetable of events, and will likely take pains to emphasize to you the amount of time it will take to actually conduct this process. Doubtless they will remind you — and remind you more than once — just how important it is that you make the time commitment, and deadlines, noted in that timetable.

My advice: Take whatever timetable they give you — and double it.

A big part of the reason your provider search will take longer than you think…is you.

A change of providers inevitably brings with it additional work, greater time commitments, and what sometimes feels like an incessant series of questions about things to which you never previously gave much thought. Moreover, you’ll have to think about how to communicate this change to your participants — and deal with the inevitable flurry of questions from them about how to do things to which they never previously gave much thought.

However, these realities are generally not top of mind when we enter into discussions about making a provider change. So, while the search is generally set forth on a wave of optimism and hope, it can, before long, find itself bogged down in the inevitable administrative minutia that consumes so much of a plan sponsor’s time. And the longer it takes, the worse it can become.

The bottom line is, at the outset you probably didn’t have 25% of your day just sitting there waiting for some big project to fill it. Even the most committed will, at some point (and likely at several some points) be tempted to push off that update call, to set aside responding to some integral data definition, to dither on making a determination that will hold up the entire project.  A good project plan will account for some of these. But not an indefinite number.

(Almost) Everybody wants to change providers on January 1. Everybody can’t.

If your plan year-end is Dec. 31 (and it is, for the vast majority of plans), there are some real benefits to making a provider change at that point in time. Plan reporting — both participant and regulatory (Form 5500) — is quite simply neater when you finish the reporting year at the same time you conclude your arrangements with a provider. Anything else is going to require someone somewhere to “splice” together reports at some point. Doing so doesn’t have to be a big deal — but it can be “awkward.”

There are some reasons not to make those kinds of changes at year-end, of course. First off, there’s generally quite a queue wanting to do so. You may well be able to get in that queue, but your new provider will likely have their hands full with a lot of plans just like yours. More significantly, your soon-to-be-ex provider likely will as well — and guess who is likely to get the most/best attention?

Bear in mind also that a 1/1 change means that a lot of the preparation, review, and/or testing— not to mention participant communications — will happen during a time of the year when people are generally more inclined to be worrying about other things.

What’s Next?

So, considering those issues, what should a plan sponsor thinking about making a provider change do?

Well, I would suggest you start early, allow plenty of time for slippage in schedule, and be open to the possibility of making a mid-year change instead.

- Nevin E. Adams, JD

Saturday, August 01, 2015

Are You Exploiting Naïve Myopic Workers With That Employer Match?

Over the years, I’ve seen some convoluted ways to rationalize undermining the tax preferences of workplace retirement plans and substituting government tax credits — but a new one just may take the cake.

A Behavioral Contract Theory Perspective on Retirement Savings,” authored by Ryan Bubb and Patrick Corrigan from the New York University School of Law and Patrick L. Warren from Clemson University’s John E. Walker Department of Economics, starts off by assuming that workers are rational, though perhaps not rational in the way you or I might consider to be rational. However, I’ll accept as logical their assertion that rational workers will prefer saving through an employer-provided plan, rather than accepting a job that does not provide such a plan.

They also claim to provide an analysis that “provides novel explanations for the use of low default contribution rates in automatic enrollment plans, the shift away from defined benefit annuities toward lump sum distributions in defined contribution plans, and the offering of investment options with excessive fees.” Well, it’s certainly novel. More on that in a minute.

Exploit ‘Actions’

The authors claim that employers that provide qualified retirement plans provide more after-tax compensation (in the form of employer contributions not subject to FICA) to employees than employers that do not, and that if workers are rational (there’s that “rational” reference again), then competition for workers in the labor market should therefore provide incentives for employers to offer such plans. So, all other things being equal, workers would prefer to work for an employer that offers a plan than one that doesn’t. So far, so good.

Now we all know that some workers don’t save, and some don’t save enough. But the paper maintains that “if workers undersave (or make other retirement savings mistakes) due to behavioral biases,” then the labor market will give employers incentives to design plans that “cater to and exploit, rather than resolve, those behavioral biases.”

They claim that some workers undersave due to myopia — and that also results in employer plan designs that “exploit the myopic,” and that they do so specifically by — wait for it — offering matching contributions, which the study’s authors claim “naïve myopic workers overvalue.”

Moreover, they claim that this matching results in what they term “cross-subsidization” of rational workers, which, in turn, lowers myopic workers’ total compensation. Said another way, matching contributions mean that the naïve, myopic part of the workforce is not only undersaving (because they overvalue the contributions), but actually receiving less compensation (since the employer is paying them less to offset the cost of the contributions). Are you following this?

And while you may be under the impression that employers offer matching contributions either to increase NHCEs’ contribution rates or to meet one of the safe harbors so that they can provide greater tax-advantaged compensation to HCEs, according to the researchers, you would be wrong. They claim that employers offer those matches precisely because myopic workers overvalue them. Sound like a devious plot to you? Now you’re getting it…

Not only that, they also claim that matching contributions crowd out what they consider to be the superior — and non-redistributive — “commitment device” of non-elective contributions. That’s right, contributions that do not require any particular action on the part of the worker other than to exist and be eligible. Apparently it’s the reward for specific behaviors that is distorting things.

‘Over’ Matched?

Indeed, these researchers believe that the mere existence of the match means that workers will overestimate how much they will, in fact, save for retirement — and, since they think they will accumulate more than they actually will, they will save less — and employers save money, not only because they pay less (the offset for the matching contributions), the workers will choose to save less — and get less of a match.

Put simply, the paper claims that the labor market gives employers incentives to craft plan designs that cater to what biased workers perceive to be of value, and that the same behavioral biases that produce worker mistakes in saving for retirement will also typically lead workers to prefer plans that fail to correct their mistakes (apparently by encouraging them to save for retirement, but not as much as they need) and that can even exacerbate them. The result, they say, is an equilibrium set of choice architectures (plan design) that fails to effectively address the basic retirement savings policy problem of people not saving enough for retirement. Choice architecture that, in their estimation, is making things worse, not better. Because employers offer workplace retirement plans — and have the temerity to match the contributions of workers who take advantage of these programs. The horror!

Employer ‘Incentives’

The authors’ main message is that when workers undersave due to those behavioral biases, then “employers have incentives to design employer contributions in a way that fails to address the undersaving problem and indeed that can even actively exploit the undersavers.”

They not only claim that matching contributions are harmful to rational workers, but maintain that they are “unambiguously so.” How? Well, they claim that matching contributions distort the worker’s incentive to save by encouraging too much savings (which is apparently different than enough savings), and the worker would receive more “utility” from being paid this money as wages.

Oh, and as another example of employer bad behavior in plan design (and ostensibly another reason employers can’t be relied upon in this role), the authors note that most employers choose an automatic enrollment default deferral rate of 3%. The authors concede that the use of automatic enrollment can result in retirement savings by employees who would otherwise have initially contributed nothing to the plan. However, they caveat this admission by noting that some who would have saved more than that default rate if they had had to fill out an enrollment form only save at the default rate.

The solution for this? Substituting for the current system of employer-provided pension plans a new federal defined contribution plan, designed by a federal agency and not linked to any particular job, of course. Oh, and not only do they claim that this could improve savings outcomes, but that it would do so “at little to no fiscal cost to the government.”

Except, presumably, for the part where the government trades the temporary deferral of tax revenues for the permanent forgiveness of a government tax subsidy.

FWIW, I find it hard to believe that this kind of analysis would survive serious scrutiny outside of the rarefied air of academia. But stranger notions have.

- Nevin E. Adams, JD