A New Fiduciary Standard?

Resistance to retirement plan innovations (like automatic enrollment) have long been excused as being “too paternalistic” – but there might be a better standard.

We’ve all heard it – concerns that imposing certain default choices on participants (and sometimes plan sponsors) are, however well-intentioned, intrusive and demeaning. Generally speaking, such concerns aren’t challenged – we “get it,” after all – most of “us” are do-it-for-myself types.

Of course, most participants aren’t – and there’s plenty of anecdotal evidence that workers, and particularly younger workers, WANT that kind of proactive support from their employer.

All of which calls to mind a new standard – one first (to my ears, anyway) articulated in the Nevin & Fred podcast by none other than Fred Reish. See, Fred was talking about explaining to his daughter what a fiduciary was – and she quickly grasped the concept, applying it to her mother and her support for her kids in looking out for them, and their best interests. It’s something I suspect just about every mother (or everyone who has had a mother) can relate – the notion that you’d do anything for your kids. No matter how old they (or you) are. A maternal standard of care, if you will.

How might that manifest itself in plan design? Well, immediate participation and automatic enrollment, for sure – though the latter likely at a rate higher than the 3% threshold that’s been established (first by tradition, then by law) as a minimum. And, depending on that starting rate, contribution acceleration – but one that follows automatically, not dependent on a separate affirmative election. These are not big stretches from where things stand at present of course – but it took the Pension Protection Act of 2006 to bring these structures to the fore – and years longer to lift those initial thresholds – years that higher levels of participation and savings could have been accumulating. 

Now, there were – and in some cases still are – legitimate reasons for plan fiduciaries to hold back on such things. For automatic enrollment, there were concerns that it imposed a financial decision that participants don’t need or can’t afford. There were (and are) administrative costs and burdens attendant with them all – and if there’s anecdotal evidence to suggest participant support, the concerns regarding negative reactions are just as real. And yet, how many have been left on the savings sidelines by those rationalizations?

Of late, I’ve been thinking about another plan design “hesitation” – retirement income. There’s little argument that those solutions are a need – but no real consensus that providing it is, or should be, a plan sponsor’s responsibility. As with the PPA, the SECURE Act provided encouragement; some much-needed (1) legislative structure and guidelines to provide fiduciary comfort with the selection and review of potential provider(s), (2) a safe harbor for the portability of benefits – and even (3) presentation on the participant statement of an amount designed to remind them of what their accumulated balance could produce in retirement income. In fact, those elements were specifically crafted to overcome the traditional objections to considering these options.

To date, the adoption rate – by plan sponsors AND participants – has not been what proponents would hope. Of course, those guidelines and provisions became law just ahead of COVID-19, and there have been a lot of other employment/benefit concerns that arguably, and even rightfully, took precedence. Participants are not, in fact, asking for these features (at least not to their employers), and there remain real fiduciary and operational concerns remaining, even with the guardrails. 

That said, I wonder if it’s not time for plan sponsors to take a more “maternal” approach to plan design – to consider anew – but still prudently and thoughtfully – plan designs like retirement income – to do more than just what the law requires, but what those whose interests they are charged with considering – need. 

I suspect it’s what Mom would do.


- Nevin E. Adams, JD

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