Você está na página 1de 14

2010

2010 HRM
“Stimulus Package”
7 Best Practices for Your Retirement Savings
Plan 1 in a Tough Economy
2010 HRM “Stimulus Package”
7 Best Practices for Your Retirement Savings Plan 1 in a Tough Economy
By: Dan Van Bogaert, J.D.2

“To acquire knowledge, one must study, but to acquire wisdom, one must observe.”
Anonymous

Today’s tough economy has caused many employers to react in a survival mode with their retirement
savings plans, sometimes without considering potential unintended consequences. Awareness of
latent long term problems that could emerge is crucial for employers who seek immediate ways to
reduce employee benefit costs. HR professionals must reexamine best practices to control costs;
particularly costs related to retirement savings plans, to avoid potential long term problems. HRM can
play a key role in helping their organizations ensure that retirement savings plans incentivize
employees, especially in the current period of slow economic recovery.

Employer sponsored retirement savings plans can and should still be an incentive to motivate
employees and inspire loyalty. Special attention should be paid to these plans because they are
largest or second largest assets employees will ever own. It is, therefore, important for HR
professionals to understand best practices when responding to the impact on retirement savings
plans from a down market and volatile worldwide equities market.

1
The term “Retirement Savings Plan” for purposes of this article means primarily Defined Contribution Plans, e.g. 401(k), Profit Sharing plans, and Defined Benefit
Plans, e.g. Pension and Annuity plans, as defined under the Employee Retirement Income Security Act (ERISA) of 1974, as amended, and the Internal Revenue Code,
e.g. §§ 401(a), 410(b), et al. Although 403(b) plans (aka “401 (k) plans for non-profits”), and certain other retirement plans in the public sector, are not subject to
ERISA, the best practices reviewed in this paper generally may also be useful to such plans, e.g. California Public Employees Retirement System
(http://www.calpers.ca.gov/index.jsp?bc=/investments/home.xml), Pension Savings Plan of Los Angeles County
(https://countyla.gwrs.com/static/CountyOfLA/html/menus/guest_psp.html). (For background information regarding non-profit retirement plans visit:
http://www.ftwilliam.com/articles/403BNonProfit20081209.html and http://www.amper.com/publications/section-403-b-plan-compliance2.asp)
2
Dan Van Bogaert, J.D. is an adjunct professor of business and employment law, as well as the northern California representative for MMC, Inc, a national HR
outsourcing firm headquartered in Los Angeles (mmchr.com). Dan also has extensive experience in the design and implementation of qualified Employee Benefit
Plans and ERISA compliance duties within multiple industries, including major corporations, e.g. Carnation/Nestle′ USA and Blue Cross. (profdan@ssctv.net)
2
Employee Pension Benefit Plan" is a generic term used to describe most retirement plans under ERISA, § 3(2); DOL Reg. § 2530.3-2
MMC, Inc. www.MMChr.com 2|Page
Overview and Brief Historical Perspective

Retirement plan benefits are primarily intended to provide workers with a degree of lifetime financial
security. They also give employers a vehicle with which to motivate workers to be productive.
Retirement plans have been around in the U.S. since the late 1800s, starting with the railroad
industry. The first pension plans guaranteed annuity payments to retired or disabled employees, and
beneficiaries. However, employer sponsored retirement plans did not become prevalent until after
the enactment of the Social Security Act in 1935.

In 1974 the comprehensive and complex Employee Retirement Income Security Act (ERISA) was
enacted to protect interests of participants and their beneficiaries in most employee benefit plans,
among other things.3 It established minimum national standards for financial reporting and
disclosures, guidelines on how employers were to operate their plans, as well as uniform standards
for vesting, participation, funding, and fiduciary conduct.

Currently, retirement plans come in many shapes and sizes, although there are two general
categories: defined benefit (“DB”) plans or defined contribution (“DC”) plans. DB plans (pensions and
annuities) provide periodic benefit payments, usually monthly, based on a formula using age, years of
service, pay and/or other factors.4 In DC plans the contribution, not the benefit, is defined under terms
of the plan. 5 The employer and employee may make the contributions to individual participant
accounts for investment purposes.

The trend for the past couple of decades has been an almost complete shift away from DB plans, e.g.
pensions and annuities, toward DC retirement savings plans, e.g. 401(k), 403(b) and similar plans
with individual accounts.6 As a result about two-thirds of all workers participate in DC plans.
* * *
Here are 7 suggested best practice areas for retirement savings plans that HRM may want to consider for
2010:
 Hold Investment Managers accountable
 Encourage maximum employee participation
 Equip employees to make informed investment decisions
 Evaluate (or resume) employer match contributions
 Beware of “furlough fallout”
 Plan ahead with pre-retirement planning programs
 Learn Compliance Issues Re: Plan Changes

3
Employee Pension Benefit Plan" is a generic term used to describe most retirement plans under ERISA, § 3(2); DOL Reg. § 2530.3-2
4
Many retirements plans permit participants to choose between a lump sum payment and fixed monthly payments. (For an informative video presentation on this
issue, visit http://www.answers.com/topic/pension.
5
“Qualified” plans receive favorable tax treatment and are regulated by ERISA. The technical definition of qualified does not agree with the commonly used
distinction. For example, 403(b) plans are not considered qualified plans, but are treated and taxed almost identically.
6
The Shift From Defined Benefit Plans To Defined Contribution Plans by Samuel Estreicher & Laurence Gold, 11 Lewis & Clark L. Rev. 331 (2007); Also, EBRI Issue Brief
#249, September 2002

MMC, Inc. www.MMChr.com 3|Page


1 Hold Investment Manager Accountable

Employers/Plan Sponsors need to hold Investment Managers accountable.7 After all they are
responsible for managing the investment of Plan contributions. One of the best ways to hold them
accountable is to evaluate their performance, as well as their proposed strategy and objectives for
2010.

One Plan – Several Fiduciaries


Investment Managers are one of several Plan fiduciaries.8 As such they have both the legal authority
and a duty to make decisions regarding financial matters on behalf of the employee/participants.
Other fiduciaries with assigned duties under retirement savings plans include those who 1) exercise
discretionary authority or control over management of the Plan or management or disposition of its
assets, 2) render investment advice for a fee, and/or 3) have discretionary authority or responsibility
in Plan administration.
9
Role of HRM: Strategic Partner & Use of Investment Manager Checklists
In light of the fact that there is so much involved in the management of the investment of Plan assets,
and the required high level of specialized expertise, what role should HRM play in this area? One
suggestion is to use comprehensive checklists for a step by step review of key areas, including (but
not limited to):

 compliance with applicable laws, trust documents and written investment policy
statement

 acceptable level of risk and appropriateness of portfolio diversification

 definitions of each fiduciary’s duties and responsibilities

 investment expenses and fees

 application of Safe Harbor provisions10

 financial reporting of investment performance

7
DOL regulation §2550.404(a)-1(b) (2). Investment performance is required to be periodically monitored for compliance with investment guidelines. Investment
considerations include diversification of risk, new volatility of portfolio, liquidity relative to plan’s funding objectives, projected return of portfolio relative to plan’s
funding objectives, fees, and particularly prevailing and projected economic conditions of investments.
8
Fiduciaries may also include Plan Sponsors, officers, principal shareholders, owners, Board of Directors, Retirement Committee Members, money managers and
investment advisors, Directed Trustees, Plan Administrators, and human resources managers.
9
For samples of comprehensive checklists, examine Arnold T. Beck’s “Investment Fiduciary Checklist” and “Setting Up a Due Diligence File” (www.fmacentral.com)
10
Employee and employer Safe Harbor matching or non-elective contributions are 100% vested immediately. (For explanation of safe harbor rules visit:
http://www.statefarm.com/learning/planning/smbus_retire/safe_harbor.asp )
MMC, Inc. www.MMChr.com 4|Page
In light of extraordinary recent changes that have taken place in the global economy, there is a need
to re-examine each Plan’s investment policies and procedures. HRM should partner with their
organization’s CFO or other responsible finance officer in this effort. Strategic partnering is needed in
order to insure a basic understanding of the Plan’s investments to effectively communicate principle
features of the Plan to employee/participants and beneficiaries, particularly general investment
options.

Other Investment Management Issues Plan fiduciaries must


exercise due diligence to control investment expenses and to
avoid prohibited transactions.11 The performance of other Plan
service providers, e.g. trustees, record-keepers, also needs to “The investment policy has
be monitored.
strategic importance. This
ERISA requires Plan fiduciaries to be identified in a written policy sets objectives and
plan document. This legal plan document must also include goals, and assigns
funding policy, procedures for allocation of responsibility for responsibilities, risk
operating and administering the plan, amendment procedure tolerance, asset allocation,
and authority, and the basis on which contributions are made objective performance
and benefits paid. 12 measurements, and criteria
Plan assets must be held in trust by one or more trustees13, for selecting and monitoring
and the Trustee(s) must be named in plan document, trust service providers.”
instrument, or appointed by a named fiduciary. The Trustee
typically has exclusive authority and discretion to manage and
control plan assets, unless a designated as “directed trustee.”

Retirement plans should not be over invested in illiquid assets, such as real estate and commodities.
Retirement plan investments in real estate are restricted because real estate is an illiquid asset that
generally cannot readily be sold for cash when needed for distribution to participants. 14

2 Encourage Maximum Employee Participation

As a best practice, HRM should encourage employees to increase (or at least maintain) Plan
contributions. One of the biggest challenges in tough economic times for employees - and HRM - is to
maintain participation in retirement savings plans.

11
ERISA § 406(a) and IRC § 4975. Prohibited Transactions involve the sale, exchange or lease of property, lending of money or other extension of credit, or furnishing
goods, services or facilities, or transfer or use of plan asset between the Plan and Party in Interest
12
ERISA §§402(a) (1), 402 (b) (1)-(4). Note that the Trustee is not necessarily the Investment Manager.
13
ERISA § 403(a); Exceptions: insurance contracts, ERISA § 403(b)
14
For example, most IRA custodians limit available investments to traditional brokerage accounts such as stocks, bonds, and mutual funds, and do not permit real
estate in an IRA, unless it is held indirectly via a security, e.g. real estate investment trust (REIT). Problems that can occur with real estate investments in retirement
plan portfolios were recently demonstrated by public sector retirement plans, CalPERS (California Public Employees' Retirement System) and CalSTRS (California State
Teachers' Retirement System). The 2 systems may have lost more than ½ $billion due to cyclical real estate losses and related bankruptcies. CalPERS also lost nearly
$1 billion on a single large housing investment known as LandSource. (Sacramento Bee, Oct. 15, 2009, page 2 “Our Region”)

MMC, Inc. www.MMChr.com 5|Page


In response to the down economy, many organizations made unpleasant choices to eliminate
positions, freeze pay increases, reduce pay, and have layoffs. In such as belt tightening environment,
employees predictably decide to cut back or discontinue contributions to their retirement savings
plans, perhaps with unintended consequences. In many instances, HRM should be stepping up to
encourage workers to contribute regularly and significantly to their retirement accounts. Furthermore,
HRM should be implementing communication strategies that highlight the advantages of participation,
despite the down economy. This best practice lessens “leakage” of savings and discourages
withdrawals, except as a last resort.

When the economy starts to recover turnover will tend to pick up. HRM needs to develop a strategy in
anticipation of such recovery. There will be a general reversal of turnover rates from the current low
7-8% average annual rate to about 17% (median turnover in 2007 ) when the economy turns
around.15 This strategy is particularly important for employers who have stopped ER match
contributions and who are thereby perceived as not loyal to their employees. Post recession, workers
will “pay close attention to how organizations treated employees when times were tough,” warns
Jennifer Schramm, manager of Workplace Trends and Forecasting program at SHRM.

A new push in early 2010 should be made to encourage increased participation in retirement savings
plans. Although a growing number of workers in the over age 30 category are starting to increase
participation anyway, averaging 7.7% of pay.16 HRM needs to take steps to insure that younger
participants are on board too.

Organizations should not miss out on the healthy increasing participation trend. The main advantage
of riding out the tough years is the avoidance of missed opportunities to purchase stocks at a
relatively low price. When the market turns the corner equities may be priced too high, possibly
resulting in widespread inadequate savings for retirement, and greater reliance on Social Security.

Special ERISA fiduciary protection


Employer/Plan Sponsors may also utilize the Qualified Default Investment Alternative (“QDIA”) option
to encourage participation. Generally, QDIA provides safe harbor relief from liability for a retirement
savings plan’s default investment when there are automatic enrollments.17

15
SRHM Capital Benchmarking Database, page 96, HR Magazine, October 2009
16
Fidelity Investments 2009 2Q report shows that the trend of employees reducing contributions to retirement savings plans started to reverse at the end of 2008;
5% of all participants actually increased their deferral rate while 3% reduced contributions; those that maintained contributions during the period 2004-2008 netted
on average netted a 35% increase in account values. The report, however, also shows that “only 44% of workers in their 20s contribute to retirement savings plans.”
(http://blog.taragana.com/n/fidelity-investments-workers-again-putting-more-into-401ks-reversing-recent-trend-137501/)

17
The Pension Protection Act of 2006(PPA) includes the rules governing automatic enrollment in 401(k) plans and the availability of investment advice. In addition,
the PPA made permanent the retirement savings incentives and contribution limits of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA).

MMC, Inc. www.MMChr.com 6|Page


3 Equip participants to make informed investment decisions

As a best practice, HRM can help employees make appropriate (informed) choices with their
investment options by offering a valuable employee benefit: a
financial planning and advisor program.
The best investment decisions are
In the process of providing assistance HRM must, however, unemotional informed decisions.
keep in mind the important distinction between investment Yet, many participants frequently
advice and investment education in participant-directed make investment decisions based
retirement plans. on their feelings, and solely in
reaction to the latest swings in the
Employer/Plan Sponsors and third party agents are permitted marketplace.
to educate employees about investment options. Generally,
only a licensed professional, e.g. SEC-registered Investment
Advisor is legally permitted to give investment advice. Investment education, as opposed to advice, is
defined by the Department of Labor as the furnishing of the following general categories of
information and materials to participants or beneficiaries in retirement savings plan participant-
directed individual accounts: 1) Plan information; 2) general financial and investment information, e.g.
historic differences in rates of return between different asset classes (e.g., equities, bonds, or cash)
based on standard market indices, 3) asset allocation models, and 4) interactive investment
materials.

Rendering investment advice to a participant or beneficiary, however, is determined based on facts


and circumstances, but generally involves 1) “furnishing information relating to the value of securities
or other property, or recommendations regarding investing in, purchasing, or selling securities or
other property, and 2) the person, either directly or indirectly, (A) has discretionary authority or
control with respect to purchasing or selling securities or other property for the participant or
beneficiary, or (B) renders the advice on a regular basis to the participant or beneficiary, pursuant to a
mutual agreement, arrangement or understanding (written or otherwise) with the participant or
beneficiary that the advice will serve as a primary basis for the participant's or beneficiary's
investment decisions with respect to plan assets and that such person will render individualized
advice based on the particular needs of the participant or beneficiary.”

Education: What, How, Who


A fiduciary named under a Plan, including HRM, may be exempt from liability for investment decisions
under DC plans when complying with proper instructions of participants.18 However, a fiduciary is
18
ERISA § 404(c), et al; Employer/Plan Sponsors must still comply with the nondiscrimination and prohibited transaction rules under
ERISA. Specifically, if an investment advice offered to participants imposes charges or requires minimum account balances that result
in a disproportionate number of highly compensated participants – as compared to non-highly compensated participants - taking
advantage of such advice, then there may be violation of the nondiscrimination requirements of 401(a)(4) of the Internal Revenue
Code and Treas. Reg. §1.401(a)(4).
For straightforward explanation of top-heavy and anti-discrimination rules under ERISA by the Profit Sharing Council of America, go
to: http://www.psca.org/DCIMagazineMembers/tabid/133/ctl/Detail/mid/490/Id/931/Archive/Default.aspx or:
http://www.401khelpcenter.com/mpower/feature_030702.html

MMC, Inc. www.MMChr.com 7|Page


protected only to the degree that a participant actually exercises decision-making control. It is
important for fiduciaries to provide sufficient information to participants to make an informed
investment decision in order to be exempt from liability.

Essentially, participants must have an opportunity to choose between a broad range of investment
alternatives. A broad range of asset classes and styles, generally at least 3 diverse core investment
alternatives, e.g. equities, bonds or debt, and cash or Guaranteed Investment Contracts (GICs), are
required to be made available from which participants or beneficiaries may choose to invest in based
on appropriate risk tolerance.19 Participants must also be able to give investment directions at least
once every three months.

There are certain duties that may not be delegated to employee/participants that may cause a Plan
fiduciary to be liable for investment activities. For example, participants must receive information
materials regarding available investment choices, as well as prospectuses of investment funds in
which assets are held. Additionally, participants and beneficiaries must be given information about
investment managers and fees or expenses charged.

Someone once said that education is what you have left after you have lost all your notes. The
question then becomes how good our note-taking is. As the baby boomer generation gets older and
closer to retirement, this group in particular needs to figuratively “take good notes” in order to make
important investment decisions. There is a legitimate national concern about whether older workers
are saving enough for retirement. We as a society in the U.S. have not been adequately saving for
our "golden years.”20.

Employer/Plan Sponsor Duty of Care


HRM is in an ideal position to influence employees to properly save for retirement, primarily by
helping them to make informed decisions regarding how their retirement savings plan contributions
are invested. Employer/Plan Sponsors have a fiduciary duty to educate participants. Conversely, a
breach of this duty may occur when employees are not given enough information or choices to
prepare them for retirement.

Employees are hesitant to admit that they do not know the meaning of various investment terms and
may never ask for clarification. Employers need to take the time to define the terms within a variety of
communication approaches, e.g. newsletters, employee handbooks, bulletin boards, payroll stuffers,
intranet.

A diverse workforce means that employees have different financial goals and objectives. Therefore,
offering training sessions or hold meetings on retirement options need to be targeted to various age
groups or knowledge levels.

In summary, an HRM best practice is to provide the valuable employee benefit of a financial
planning and advisor program. These programs primarily bestow advice regarding retirement

19
Ibid. For more information on requirements for broad range of investments visit:
http://www.reish.com/publications/article_detail.cfm?articleid=231
20
For example, reliable studies at http://www.bea.gov/BRIEFRM/SAVING.HTM and http://dinomite.net/2009/united-states-
personal-savings-rate / show that while personal savings rate (as a percentage of personal income) has recently risen to almost 5% -
perhaps temporary due to national feelings of financial insecurity from the down economy – the rate for the past decade averaged only
about 2%.
MMC, Inc. www.MMChr.com 8|Page
savings plan investments to insure that employees in participant-directed investment accounts make
informed decisions. After careful selection of a licensed financial planner with a proven track record,
HRM would need to develop a comprehensive strategy to effectively communicate the program to all
employees.21

4 Evaluate (or resume) employer match contributions

Nearly 1/3 of all U.S. employers with contributory retirement savings plans have recently reduced or
suspended matching contributions. “In tough economic times, many employers are seeking to cut
compensation-related costs; employer contributions to 401(k) plans are an obvious target. While
reducing employer contributions can hurt employee morale, it is sometimes a better option for
reducing labor costs than furloughs and layoffs, for example.” 22

The Internal Revenue Code requires qualified DC Plans meet special non-discrimination tests to
insure lower paid workers join such plans. Therefore, Employer/Plan Sponsor must be cautious when
adjusting employer match contributions, particularly with regard to compliance with notice
requirements and non-discrimination standards. Most 401(k) plans, for example, are written to give
the employer the discretion to set the amount of employer match at any time. Reducing or
suspending employer match contributions that are intended as safe harbor contribution must provide:

 Eligible employees are provided with timely notice and explanation;


 An effective date of reduction or suspension no earlier than the later of 30 days after eligible
employees are provided the notice and the date amendment is adopted23;
 Eligible employees with a reasonable opportunity to change their elective contributions;
 A plan amendment for satisfying ADP/ACP tests the entire Plan Year; and,

Lastly, the requirements for the safe harbor must have been satisfied for the period through the
effective date of the amendment.

Conversely, stopping employer match contributions may be impermissible if 1) it would result in


discrimination in favor of highly compensated employees (generally employees who earned in excess
of $110,000 in 2009), or 2) it would violate a safe harbor commitment.

21
For examples of a successful personal financial planning & advisor programs (includes user-friendly video) visit:
https://pwceadvisor.pwc.com/portal/images/Demo/Demo.swf and http://www.ayco.com/
22
Spectrem Group, 2008-2009 report; Details at http://www.spectrem.com/
23
IRC §4980F(e) and ERISA § 204(h); “Anti-cut back” rules require advance notice of change to participants and Alternate Payees; DC
plans that specifically states the level of employer match and commits the employer to make that match must amend plan on a
prospective basis for any modification. (For related informative article visit:
http://www.shrm.org/hrdisciplines/benefits/Articles/Pages/MidyearReduction.aspx)
MMC, Inc. www.MMChr.com 9|Page
Automatic Contribution Arrangements Alternative (“ACA”)
Another way to increase employee participation in DC plans, albeit more expensive, is to utilize a
special safe-harbor ACA alternative. The primary purpose would also be to insure compliance with
non-discrimination provisions of ERISA by increasing Plan participation.24 A particular retirement
savings plan may thereby satisfy employer contribution requirements through safe-harbor employer
non-elective contributions to non-highly compensated employees, rather than through safe-harbor
matching contributions to all eligible participants.

In summary, an HRM best practice is to resume or increase employer match contributions as soon as
possible because when the economy fully turns around, the cost of recruitment will quite possibly
increase to a point greater than the savings from not making the match.

5 Beware of “Furlough Fallout”

Public sector employers in 28 states, including California25, have used furloughs to stretch 2009
budgets. Furloughs have also frequently been used in the private sector.
The best practice for handling necessary furloughs is to minimize the adverse impact, particularly as
related to retirement savings plans. Since a furlough is an unpaid leave (typically about 1 to 2 weeks),
contributions to retirement savings plans would be reduced. The negative impact of furloughs may be
minimized by:

 Offering retroactive “makeup” contribution, subject to specific condition applied on a uniform


non- discriminatory basis
 Meeting one-on-one with affected employees;
 Being flexible regarding when leave without pay is taken, but subject to supervisor approval,
e.g. around child care and vacations;
 Spreading pay losses over several future pay periods. Gives as much advance notice as
possible to allow employees time to budget
 Encouraging employees to share ideas on how they may constructively use time off;
 Giving full and transparent disclosure to the extent possible, and include information about
unemployment benefits; Explain how retirement savings plan benefits and other employee
benefits are affected;
 Addressing post-furlough morale issues; Make an announcement of the organization’s sincere
appreciation of employees’ sacrifices to help organization survive during difficult times.

6 Plan ahead with pre-retirement planning programs

24
§401(k)(13), 414(w) of the Internal Revenue Code; For more detailed information on “ACA”, including notice requirements and
sample employee communications, visit: http://ftp.irs.gov/pub/irs-tege/sample_notice.pdf
25
For background: http://www.shrm.org/Publications/hrmagazine/EditorialContent/Pages/0909fox.aspx
MMC, Inc. www.MMChr.com 10 | P a g e
As Baby Boomers approach retirement age, they face a series of profoundly important decisions that
will determine their economic wellbeing during their
remaining lifetime. They must decide when to retire, when
to start Social Security income payments and employer
pensions, and how DC plan balances should be distributes. One of the many causes for
Lack of knowledge in these areas may lead to poor decision postponement is the fact
26 that those invested primarily
making.
in equities have seen their
Many employers are implementing win-win “phased retirement assets shrink by
retirements” as a form of change in response to the current as much as 30% to 40%.
economic crisis. As part of pre-retirement planning
programs, employers may offer older workers the option of
continuing to contribute their talent and experience on
scaled-back basis. Employers save on salary expense, while employees who cannot currently afford
to retire are able to continue working but at fewer and more flexible hours with less responsibility.
Phased retirements may require changes to organizational policies, amendments to plans, and/or the
development and implementation of “bridge” plans or bonuses. One study shows that nearly 24
percent of workers over age 50 participate in some type of phased retirement arrangement.27

It is also important to advise any employees eligible for the program to determine any impact
continued working would have on Social Security benefits and overall financial planning.

* * *

The complexity of decision that have to be made, coupled with the postponement and phased
retirement trends have resulted in increased need for pre-retirement planning. Older workers who
have been forced to leave their jobs must also make decisions on how and when retirement benefits
are to be distributed, e.g. cash out, IRA rollovers, deferral, immediate annuity, or conversion to
deferred annuity.

7 Learn Compliance Issues Re: Plan Changes

The following are highlights of some key court cases that relate to retirement savings plans.
Monitoring landmark court rulings and new laws enables HRM to interface with legal counsel, and to
build a basic understanding of legal issues that may impact retirement savings plans.

26
For an informative example of a comprehensive retirement planning software made by Society of Actuaries, visit
http://www.soa.org/files/pdf/Retirement%20Planning%20Software.pdf
27
Retrieved October 15, 2009 at:
http://www.watsonwyatt.com/us/pubs/insider/showarticle.asp?ArticleID=13054&Component=The+Insider
MMC, Inc. www.MMChr.com 11 | P a g e
Highlights
Recent Court Cases
Pegram v. Herdrich, 530 U.S. 211, 226 (2000) – Breach of ERISA fiduciary duty
The threshold question is whether [the defendant] was acting as a fiduciary, i.e. was performing a
fiduciary function, when taking the action subject to complaint. (ERISA § 502(a) (2): codified at 29
U.S.C. § 1132(a) (2) and authorizes a suit by a plan participant “for appropriate relief” against a plan
fiduciary for breach of fiduciary duty, i.e. harmful errors in Plan administration.)

Vaughn v. Bay Environmental Management, Inc., 544 F.3d 1008 (9th Cir. 2008) – Former
participants have standing to sue a former employee who has voluntarily withdrawn account balance
from a defined contribution ERISA plan has statutory standing as a “participant” of that plan, and may
hereby assert claims for breach of fiduciary duty under section502(a)(2) of ERISA even if claims
under Section § 502(a)(1)(B) are also available; Participants who voluntarily cash out their defined
contributions plans have statutory and constitutional standing to assert breach of fiduciary duty claims
under ERISA section 502(a)(2) even if relief is available under 502(a)(1)(B).

Paulsen v. CNF Inc., 559 F.3d 1061, 1073 (9th Cir. 2009)
The Supreme Court has held that recovery for a violation of 29 U.S.C. § 1109 for breach of fiduciary
duty inures to the benefit of the plan as a whole, and not to an individual beneficiary.”

LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S. Ct. 1020 (2008)
Supreme Court held that an ERISA plan participant may recover monetary losses to individual (DC)
plan account due to an alleged fiduciary breach (failure to implement investment election in a timely
manner to avoid drop in stock market).

Steve Harris, et al. v. Amgen, Inc. et al., 2009 U.S. App. LEXIS 15499; Ninth Circuit, No. 08-55389
Employees who cash out of a defined contribution ERISA plan are still “participants” in that plan, as
defined by 29 U.S.C. § 1002(7), regardless of whether they withdrew their assets voluntarily;

Background: Harris and Ramos filed a class action complaint alleging that during a 22-month class
period the defendants breached their fiduciary duties by allowing the Plans to purchase and hold
Amgen stock while knowing that the stock price was artificially inflated because of improper off-label
drug marketing and sales.

Braden v. Wal-Mart - 8th Cir. November, 2008 - $10B 401(k) plan – Excessive fees issue
Class action lawsuit filed alleges that Wal-Mart violated mutual fund ERISA statutes and cost its
401(k) employee plan holders and investors $60 million in unnecessary expenditures by purchasing
expensive mutual funds, when cheaper alternatives were available.

Wal-Mart 401(k) plan is one of the largest plans in the U.S., with over 1 million participants and
almost $10 billion in assets under the plan.

The Eighth Circuit will hear appeal on the issue of excessive fees and alleged kickbacks, and will
focus on the plans size in reviewing its ability to have negotiated the fees to the participants. (Wal-
Mart 401(k) plan offers 10 mutual funds, a common/collective trust, Wal-Mart common stock, and a
stable value fund.)

MMC, Inc. www.MMChr.com 12 | P a g e


In re Tyco International Ltd. Multidistrict Litigation, D.N.H., No. 02-1335-PB
Tyco Fiduciaries not shielded by ERISA section 404(c); The U.S. District Court of the District of New
Hampshire appears to be in line with DOL’s position on the extent of protection offered by ERISA
section 404(c). Tyco offered company stock as a Plan investment option; Court held that Tyco could
not use 404(c) as a defense for choosing poor investment options for the plan.

Note #1: If losses occur as a result of participants’ direct control in investment choices, as opposed to fiduciary’s direct control, then
Plan fiduciary should not be held liable.
Note #2: The Seventh Circuit held that participants had "control" over the investments and, therefore, ERISA section 404(c) shielded
the fiduciaries from liability. The participants alleged that the fiduciaries breached their duties by failing to inform the participants of the
fees associated with the investments in their accounts. The DOL stated that it is the employer not the participant who "controls" the
investment menu, since it is the employer choosing the investment line up within the plan. ERISA section 404(c) cannot shield the
employer from choosing investments that have excessive fees. The Seventh Circuit did not agree.

Register v. PNC Fin. Servs. Group, Inc., 477 F.3d 56, 61-62 (3d Cir. 2007)
Employee bears the investment risks and the employer does not guarantee a retirement benefit
(defined contribution plan") to the employee;

AK Steel Corporation Retirement Accumulation Pension Plan, Et Al v West, No. 07-663 – Cash
Balance plan issue; ERISA's anti-forfeiture and actuarial-equivalence provisions.

Participant took early retirement and elected to receive pension benefits in a lump-sum distribution. If
the rate used to calculate interest credits is greater than statutory discount rate, then the lump-sum
benefit would be greater than the participant's hypothetical account balance on the date of
distribution. Alternative form must be the “actuarial equivalent” of an annuity commencing at normal
retirement age; Ambiguity in Plan formula calculation must be resolved in participant’s favor to avoid
violation of ERISA's anti-forfeiture and actuarial-equivalence provisions.

* * *
Various compliance issues must be carefully considered before making retirement savings plan
changes. Other compliance issues may inadvertently arise in relation to cost-cutting measures.
As employers look for ways to cut costs to stay competitive, alternatives outside of Plan changes
should be considered, e.g. suspension of pay increases, furloughs, unpaid vacations, and hiring
freezes. “There is no denying the need to cut costs as revenues decline. But we will be better off as a
whole if employers temporarily cut pay more steeply, or perhaps shed a few more jobs, rather than
create a new norm whereby retirement plans are funded only during economically healthy years.” (J.
Nittoli, AVP, Rockefellers Foundation, May 20, 2009)
The foregoing highlights are not intended as an exhaustive listing of court cases and regulations relating to
retirement savings plans. Plan Administrators still have to meet annual reporting and disclosure requirements,
anti-discrimination testing, and occasional plan amendments necessitated by new statutes. HRMs should
regularly keep abreast of these types of compliance issues by attending seminars, workshops, and watching
for reliable professional “legal updates”.28

28
An excellent source for keeping abreast of landmark court cases, rulings, and related statutes and informative seminars, visit
http://www.boardmanlawfirm.com/attorneys/VANBOGA.html
MMC, Inc. www.MMChr.com 13 | P a g e
About the Case
Today’s tough economy has caused many employers to react in a survival mode with their retirement
savings plans, sometimes without considering potential unintended consequences. Awareness of latent
long term problems that could emerge is crucial for employers who seek immediate ways to reduce
employee benefit costs. HR professionals must reexamine best practices to control costs; particularly
costs related to retirement savings plans, to avoid potential long term problems. HRM can play a key
role in helping their organizations ensure that retirement savings plans incentivize employees,
especially in the current period of slow economic recovery.

About the Author


Mr. Dan Van Bogaert is a widely known and highly regarded adjunct professor teaching employment
law and human resource management graduate, undergraduate and certificate courses. He brings
more than 20 years of experience in training HR professionals throughout California. His work includes
the design and administration of corporate employment policies, benefit plans, and related ERISA
compliance consulting in public and private business sectors.

About the Company


MMC, Inc. was established in 1983 for the purpose of providing proficient Human Resource Consulting
and highly effective administrative Outsourcing functions. For the past 27 years, MMC has enjoyed its
role as a leader for innovative management solutions which makes us an invaluable partner for
successful businesses. Our goal is to offer quality service that sets the highest standards and exceeds
the expectations of our client. To accomplish this task, we have assembled a team of experienced
professionals from every field of Human Resources and offer a wide range of services from completely
automated payroll services, the latest and most current in HR Best Practices advice and counseling,
improved labor relations between management and employees, worker’s compensation, various
benefits to employment law counseling.

. www.MMChr.com | 888.866.2476

MMC, Inc. www.MMChr.com 14 | P a g e

Você também pode gostar