Friday, April 18, 2014

Implement an Education Strategy


Nicholas Zaiko, CIMA®
Investment Consultant
Bridgebay Financial, Inc.

The best way to implement an effective education strategy is to create an Education Policy Statement that establishes an overriding framework for deploying and measuring the effectiveness of participant communications.  The process of formally documenting the strategy in a policy statement helps ensure that the program will be focused, effective, and quantifiable. 

By establishing specific goals in the policy, educational campaigns can be more easily assessed and positive results measured against identified criteria.  The process of creating the policy turns nebulous notions of improving participant financial literacy into specific, discrete goals that can be used to guide the educational efforts of the program.

An Education Strategy guides the development of ongoing participant communications and education.  The strategy focuses on specific demographics or employee segments that need targeted education and messaging.  The strategy should identify specific types of desired results and include a calendar for delivering the education, milestones and how the program’s success will be measured.

Getting Started
An Education Strategy can document the objectives of the education program, content of the educational meetings, webinars, seminars, topics to be covered, and feedback or survey results.  There are several plan statistics that can be helpful in identifying areas for improved participant communications which include participation rates, average deferral rates, asset allocation among funds, and average participant balances.  All of this data can be provided by the recordkeeper and sliced by age, income group or geographic location.   Different savings patterns can be further evaluated by employee salary levels, divisional location, experience level and age.  These statistics, supplemented with employee surveys, can be utilized to identify certain populations of employees that face similar challenges in retirement plan savings. 

Once some of the challenges have been recognized, relevant goals, objectives, action plans and an education program can be developed to achieve stated goals. 

Employee Surveys
A well designed employee questionnaire or survey can be instrumental in identifying misconceptions about the retirement plan, employee benefits and areas of interest to employees.  The results of this survey may highlight areas for increased participant communication and educational needs. 

Plan sponsors can also benefit from industry data available through the recordkeeper and plan advisor that compares the plan to peer groups with similar workforces.  These industry surveys and benchmarking studies can be helpful in designing the plan and the communications program to enhance participant satisfaction and employee retention.

Setting Goals
Different measures of success can be used to establish specific goals.  Some typical milestones include increasing participation levels among a specific demographic, growing balances among certain salary levels, increasing contributions for participants stuck at a low percentage, broadening overall savings, improving asset allocation for participants in one undiversified fund, or improving personal returns.

Determining the Goals
The Education Strategy should focus on the issues or communications gaps that must be addressed.  Not participating in the retirement plan, inadequate deferral rates or excessive loan taking can all be areas for further education.  Employee groups to be targeted with specific educational topics can be prioritized in the annual education plan. 

The communications objectives should be stated to provide a clear message in the educational campaign.  Document the education campaigns to be delivered for the year by topic, targeted group, frequency, and delivery method.  Establishing an annual communications calendar that highlights the specific schedule for the various educational programs is critical for a well-orchestrated program that is measurable and repeatable. 

Finally, define the annual goals and objectives and how they will be evaluated and measured.  This is an opportunity to define the key metrics to be used to monitor the plan’s effectiveness and identify areas for modification. 

Means of Delivering Education Program
The methods by which the education will be delivered is an integral part of the strategy and planning process.  The use of in-person small group sessions, webinars, seminars, online tools, and participant feedback should be part of the annual plan.

The sequence of educational topics for the general audience as well as more targeted communications for specific employee demographics is important.  Certain topics may address the unique financial wellness and planning for women while other topics may be more relevant to young parents or recent graduates or new hires.  The topics should be segmented by stages in life and unique needs.

Topics to Be Presented
The education strategy should have a process for the review of all educational materials to be presented to the participants to screen for sales pitches or other services that would be a conflict of interest.  The annual plan should include a list of presentation materials that have been reviewed by the plan sponsor in advance for relevance and educational value. 

Measure Milestones and Education Success
Metrics for measuring the success of specific educational campaigns should be established in advance and should be used to evaluate the factors that contributed to the session’s success or help explain why the program missed the mark with participants.  Later sessions can be modified to absorb the feedback from participants.  By setting expectations in advance, results can be measured to determine the effectiveness of the program and set standards for future improvements. 

The effectiveness of a program can be measured by changes in participation rates, deferral rates, fund changes, or increased usage of service provider services following an educational program.  Follow up may also include a participant survey which can provide actionable information. 

Educational programs should be developmental and sequential.  They should target different participant groups by topic and interest.  Simply providing introductory and enrollment meetings does not educate participants nor do they gain financial literacy.  Educational plans should provide a foundation upon which to progressively build the participants’ knowledge of financial topics that are relevant to them.


Monday, February 24, 2014

Best Practices: Plan Sponsors Should Differentiate Between Settlor vs. Fiduciary Functions

Nicholas Zaiko, CIMA®
Investment Consultant
Bridgebay Financial, Inc.

Bridgebay does not provide legal advice and recommends that you consult an ERISA attorney concerning settlor and fiduciary roles.  The commentary in this communication is strictly an update on plan sponsor trends and does not constitute legal advice. 

The Employee Retirement Income Security Act of 1974 (ERISA) establishes legal and operational guidelines for pension and employee benefit plans.  Not all decisions directly involving a plan, even when made by a fiduciary, are subject to ERISA’s fiduciary rules. These decisions are business judgment type decisions and are commonly called “settlor” functions.

In response to recent retirement plan litigation, many legal experts are advising plan sponsors to compartmentalize fiduciary risk.  They advocate a clear separation between settlor and fiduciary functions and suggest that plan sponsors maintain separate committees.

The “business decision” exception to ERISA’s fiduciary rules indicates that a plan sponsor and retirement plan administrator, may not be considered as a fiduciary when creating, amending or terminating a plan, which are settlor functions.

Among the decisions which would be considered settlor functions are:
  • Selecting the type of plan (DB, DC, Roth, etc,)
  • Amending a plan, including changing or eliminating plan features
  • Changing the level of employee contributions
  • Terminating a plan, or part of a plan, including terminating or amending as part of a bankruptcy process.
A plan sponsor is free to amend or terminate its plan at any time as long as they follow regulations on communicating certain types of changes to participants prior to the effective date.

Typical settlor functions involve creation, termination and amendment of a plan, plan design, determination of eligibility, and the benefits offered.  Many legal experts believe that settlor functions are not subject to the same ERISA fiduciary standards.   For example, the decision to terminate a plan is a settlor function and would not give rise to a claim for breach of fiduciary duty. 

Fiduciaries exercise control over plan assets and have discretionary authority over the operation of the plan.  Fiduciary actions are governed by ERISA standards, while settlor activities are generally not.   Fiduciary status is acquired and is limited to having or exercising discretion over the plan.

This means that the decision to terminate a plan may not be considered a fiduciary action, but the way in which the plan termination is administered would be.  This is a major issue for employers that are terminating their defined benefit plans and replacing them with defined contribution plans.  This action is an example of a settlor function.

From a legal perspective, the segregation of duties is appealing, yet the ability to maintain distinctly separate settlor and fiduciary functions may be difficult.  Often plan sponsor decisions may be a combination of both settlor and fiduciary functions.  When acting as both a fiduciary and a settlor, those actions will be closely scrutinized if they are legally challenged.

A corporate official who has dual roles is bound by ERISA’s fiduciary roles only when managing the plan or its investments, but not when performing settlor functions or when conducting general corporate functions.

 This communication is strictly an update on plan sponsor trends and does not constitute legal advice from Bridgebay. 

Saturday, January 11, 2014

403(b) Fiduciary and Compliance Requirements


Nicholas Zaiko, CIMA®
Investment Consultant
Bridgebay Financial, Inc.

The Employee Retirement Income Security Act (ERISA) of 1974, enforced by the Department of Labor (DoL),  established fiduciary responsibilities for plan sponsors.   Although some retirement plans may not be subject to ERISA, it is still best practice to follow those high fiduciary standards when managing non-ERISA plans.  All ERISA and non-ERISA plans must also comply with IRS regulations.

IRS regulations, effective 2009, changed 403(b) plans from essentially employee-controlled and directed, tax-sheltered accounts to integrated, full-service retirement plans whereby the plan sponsor now has fiduciary responsibility and liability for the prudent operation of the plan for the benefit of the participants.

Plan Document
Since 2009, both ERISA and the IRS have required a written plan document for the 403(b) plan that includes detailed information on plan eligibility, benefits, contribution limits and distributions.  The plan document should be reviewed and updated periodically and be consistent with the operation of the plan.   The plan document is then communicated to participants through an updated summary plan description (SPD).

The plan's legal counsel should review the documentation and amend the plan document periodically as regulations change.  Plan sponsors can retain plan document services for creating, modifying or updating plan documents and remaining compliant with IRS and Department of Labor regulations.

Universal Availability
Employer-funded 403(b) plans must meet statutory universal availability requirements and pass nondiscrimination tests, including new rules for control groups.  The IRS requirements were established to ensure that all eligible employees have access to the plan and receive an equitable distribution of plan benefits without favoring highly compensated employees versus rank and file participants.

Reporting Requirements
ERISA 403(b) plans became subject to IRS Form 5500 (Annual Return/Report of Employee Benefit Plan) filing requirements.  403(b) plans with over 100 eligible participants at the beginning of the plan year, generally, must have their financial statements audited by an independent auditor.

Monitor Plan Transactions
Plan sponsors with multiple vendors should establish a process to ensure that contributions, distributions and other participant transactions meet their the IRS limits.  They should monitor participant transactions such as loans and hardship withdrawals across vendors to ensure they comply with IRS and DOL regulations.

Information sharing of transactions and participant-directed asset transfers are generally  limited to authorized fund providers that share information with the plan sponsor. Transaction monitoring helps the plan sponsor comply with IRS rules and ensures employee contributions and distributions are correct.

Plan sponsors can retain compliance monitoring services provided by recordkeepers to help minimize risk and ensure plan compliance in such areas as loan and hardship withdrawals, contribution limits, nondiscrimination and universal availability.

Sponsors should implement a process for notifying employees, as required, about plan eligibility, enrollment readiness, contribution limits, QDIAs and other information.

Noncompliance is Serious
Noncompliance can subject the plan sponsor and the participants to a range of adverse outcomes.  Depending on the severity of the violation, failing to comply with regulations may result in significant fines against the plan sponsor or even  disqualification of the entire plan, making all plan assets taxable.   

If the plan sponsor does not monitor or limit plan contributions or distributions, there may be penalties and taxes due for participants that exceed the IRS limits.

Governance
Every plan sponsor should strive to implement best practices in the administration and oversight of the 403(b) plan by establishing a comprehensive set of policies and procedures that are consistently followed.  Adherence to these procedures should support a well-thought out process that reduces fiduciary risk for plan sponsors.

Prudent oversight should encompass plan governance, rational plan design, consistent oversight and compliance.

Plan governance should be documented with policies that specify fiduciary responsibilities, accountability, roles, and procedures. For compliance purposes, specific roles should be clarified, documented and accountability established for varying responsibilities.

All designated fiduciaries should understand their status, duties and potential personal liability for any fiduciary breach.  The plan should have an Investment Committee that oversees the investments. An Administrative Committee would make decisions on plan design, benefits, and employer contributions.

Plan Design
Plan sponsors should review periodically the plan design to incorporate new features as regulations change, plan demographics evolve, and new services become available to the plan.  They should consider the impact of automatic enrollment, automatic deferral, re-enrollment and  automatic deferral increases as provided for under the Pension Protection Act of 2006 (PPA). 

Another design feature is to add a Qualified Default Investment Alternative (QDIA) to ensure that participant balances are properly invested when they do not make an investment selection for their contributions.

Investments
An investment policy statement establishes the guidelines for selecting and monitoring plan investments, 404 (c) compliance, plan fees and monitoring service providers. Fiduciaries should consider using experts such as independent retirement plan investment consultants that serve as fiduciaries to develop investment policy guidelines, assist with investment menu design and conduct annual investment reviews.

The investment options available to participants should ensure broad diversification to help balance risk and return for all investor types.

By following a prudent and consistent process to demonstrate how each investment was selected for the plan to benefit its participants, plan sponsors can meet their fiduciary obligations.  Once selected, investments should be monitored for performance against relevant benchmarks and fees.

A well-diversified fund menu should address the needs of different types of participants.  An investment line-up should include a variety of investment options, each with different objectives, benefits and risk profiles to serve a wide range of participant needs.  A good line-up would include a range of investment vehicles that enable the participant to create a unique asset allocation.  Asset allocation options are well-suited for participants that prefer to have their investment decision managed professionally.  Finally, guaranteed income options that are designed to provide retirement income may be an effective way to provide participants nearing retirement with a steady stream of income.

Education
Plan sponsors can provide education and advice for participants using a full range of educational programs that offer individual objective advice, webinars, publications, online tools and educational resources.  The quality, impartiality, and effectiveness of these programs should be monitored by the plan sponsor.

Annual Review
An annual plan review can identify areas for improvement and ensure that the plan is being operated effectively.  Reviews should cover areas such as plan participation, asset flows, service quality, cost, transaction activity, participant satisfaction, education, fees and investment performance. By consolidating multiple providers to a single provider, plan sponsors gain greater control, flexibility and cost-efficiency.  Plan sponsors’ role in meeting fiduciary and compliance requirements through an efficient and optimal plan design will produce better retirement outcomes for their participants.

Conclusion
The plan sponsor’s role as a fiduciary should focus on strategies that mitigate risks associated with fiduciary responsibilities and compliance issues.  The risk of not operating a 403(b) retirement plans in a compliant manner have increased as regulations continue to change and evolve.

Bridgebay, an independent retirement plan consultant is dedicated to advising plan sponsors and assisting plan sponsors in meeting their fiduciary and compliance obligations, offering plan design solutions with proven results and providing access to objective advice and guidance for employees.  Bridgebay serves as co-fiduciary to its plan sponsor clients.

Friday, January 3, 2014

2014 Outlook for Regulatory Updates for Employer Retirement Plans


Barbara Williams, CFA,
Managing Director
Bridgebay Financial, Inc.

The Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) is expected to issue a full range of guidance and regulations in 2014, some of which have long been under evaluation. 

Section 408(b)(2) of ERISA Amendment
EBSA is expected to amend the disclosure provisions requiring covered service providers to provide a guide that helps fiduciaries to understand the terminology used in the disclosures, contracts or arrangements.  The guidance is intended to clarify any potential conflicts of interest, identify the true costs and understand the disclosures to determine the reasonableness of covered service provider costs.  Often the disclosures are provided in complex terms and disclosed in complicated documents.   EBSA’s notice and amendment to Section 408(b)(2) of ERISA is expected in January, 2014.

QDIA Amendment
The DOL’s qualified default investment alternative (QDIA) regulation is expected to be amended. Fiduciaries are provided certain fiduciary protection for participant-directed defined contribution plans whereby the participant does not select investments to be defaulted to the plan’s QDIA with the appropriate notices. 

EBSA is expected to issue a final rule in March 2014 that amends and increases the level of investment information that must be disclosed in the required notice to participants and beneficiaries.

The proposed rule-making will amend the participant-level disclosure regulation under ERISA Section 404a-5 for information on the QDIA plan option.  The most widely used QDIAs in defined contribution plans include target date and asset allocation funds.  The EBSA issued a proposed rule in November 2010 and plans to issue its final rule on the increased participant disclosures in March, 2014.

Defined Benefit Plan Funding Notices
EBSA is expected to finalize rules for annual funding notices for DB plans.  It will also address summary annual reports for defined benefit plans. The funding rule was originally proposed in 2010 with the comment period ending in January 2011.   EBSA plans to issue a final rule in March, 2014.

Brokerage Window
EBSA is expected to review the use of brokerage window-only options by participants in ERISA-covered defined contribution plans.  Most participant-directed plans offer a specific number of investment choices or menu of investments that are selected by the plan sponsor through a due diligence process.  In contrast, some plans offer a brokerage window-only as the investment option.  In the case of a brokerage window, the plan sponsor cannot and does not conduct a due diligence review of all of the potential investments the participant may choose.  A brokerage window may include an inordinate number of mutual funds, ETFs, stocks and bonds.    

EBSA intends to determine and potentially issue regulatory guidance and establish fiduciary requirements for plan sponsors that offer the brokerage window-only investment option.  The review of this issue will be initiated through the issuance of a Request for Information from the Industry and plan sponsors in April, 2014.

Lifetime Income Illustrations
EBSA plans to issue guidelines for lifetime income illustrations on participants’ retirement account statements in late August, 2014.

Fiduciary
EBSA is expected to issue new definitions for fiduciary and identifying conflicts of interest.  The revised definitions have been under review for a few years.  The proposed “conflict of interest rule is now expected September, 2014.   

Safe Harbor for Selecting Annuity Providers
The DOL and Department of the Treasury recently issued a Request for Information (RFI) to elicit information on Lifetime Income Options for Participants and Beneficiaries in Retirement Plans.  The purpose of the RFI is to elicit information from the financial industry and plan sponsors to determine the practicality of inducing defined contribution plans to offer a lifetime income stream throughout retirement through a third party annuity provider or another contractual arrangement.   

In 2008 the DOL had issued a regulation that established a safe harbor for plan sponsors that met their fiduciary responsibilities in their selection of an annuity provider.

EBSA is now considering amending the annuity selection safe harbor based on the RFI responses and may issue a revision in October, 2014.