‘I don’t know if you’ve been watching the news lately, but we live in contentious times,’ said [anyone at any given moment in history]. It seems to be the case that putting people near each other is the fastest way to guarantee discord of some kind. In our industry, that can play out in a number of ways; making major headlines these days, though, are lawsuits targeting 401(k) plans.
For the last decade, most of these lawsuits have been aimed at mega plans – those in the multibillion-dollar arena – and their service providers. But the past few years have seen this litigation creep down market and target plan sponsors for their lack of fiduciary prudence. So the question must be asked: as a plan sponsor, do you know how to help reduce the threat of litigation?
First, remember the point of the 401(k) plan is to help employees achieve desired retirement outcomes. In other words, your legal obligation is to ensure your plan’s administration and investment management decisions are in the best interest of the participants. Keeping that in mind, it’s useful to understand potential danger zones.
Inappropriate investment choices – ERISA puts the emphasis on a prudent decision-making and monitoring process in the selection of investments, rather than on the specific funds chosen. Creating an investment policy statement (IPS) is the best way to establish guidelines for making investment-related decisions in a prudent manner, but plan sponsors must be diligent in following its criteria and objectives. Once established, failure to follow an adopted IPS could be considered a demonstration of fiduciary imprudence.
Excessive fees – Again, ERISA requires a careful, prudent process to ensure no more than reasonable fees are paid for necessary services. High fees aren’t inherently bad, but they can become legally problematic if a plan sponsor can’t demonstrate their prudent decision-making. Understanding if fees are reasonable requires a thorough benchmarking process – fund fees should be compared to other funds with similar risk/return and asset class characteristics, and plan fees (recordkeeping, administration, advising, and any other recurring expenses) should be compared to peer plans.
Documentation is an important element here – formally demonstrate the process undertaken to select and regularly monitor investments, review fees charged and services received, and choose which benchmarks were used. Continue to monitor fees over time and consider how changes in the plan have affected those fees. (For example, as plan assets grow over time, the plan may become eligible for a lower cost share class.)
Committee members who both understand and properly execute their fiduciary roles and responsibilities are better equipped to serve their plan participants and avoid litigation. That’s a winning formula for everyone (except the litigation lawyers, I guess).
Did you know Department of Labor investigations consistently find failures in over 70% of retirement plan audits? These findings could be anything from failing to monitor the plan to defects in plan administration to misinterpreting plan provisions. Since spring is now officially upon us, consider a few suggestions for cleaning up your retirement plan.
Review your plan documents
First of all, it’s pretty helpful to know where they are – an auditor would certainly want to. Plan documents include the adoption agreement, amendments, summary plan description, investment policy statement, and so on. If you don’t have a fiduciary file or secure online vault in which to store these documents, start one today. Request any missing documents from the appropriate parties. Next, verify your plan documents are compliant with laws and regulations; amend them as required. Most importantly, though, ensure you are adhering to them!
Know your roles
To be compliant, the people running your day-to-day operations need to understand both the plan documents and their fiduciary duties. Define roles and clarify responsibilities. Don’t forget to document these assignments, as well as the processes to implement them – it may be beneficial to utilize a committee charter, fiduciary acceptance and acknowledgement letters, or a retirement plan internal controls policy. It’s important to be aware of all the fiduciaries serving your plan, because you have potential liability for their actions. And even if you have delegated certain fiduciary duties to others, you still retain fiduciary responsibility for prudently monitoring their performance.
Monitor the contribution process
The most common ERISA violation is making delinquent contributions and loan repayments. No matter who is responsible for remitting contributions, you must know your plan’s reasonable standard and understand the overall remittance process. Take care to monitor the responsible parties so you are attuned to issues as they arise; if they do, work with an advisor to determine how you should correct late payments, as well as report delinquent payments on your Form 5500.
Schedule your audit
If you haven’t done so already, schedule your plan’s required audit. Take care as you select your auditor: an auditor plays an important role in the health of your plan, so be sure to ask clarifying questions regarding their capabilities, workload, credentials, etc. Exhibit due diligence by documenting your selection process.
Clear the clutter
You also have a fiduciary responsibility to monitor the assets held in your plan and prudently act on your participants’ behalf. This includes terminated participants with account balances in the plan. And that’s not all. Those terminated participants are also required to receive benefit statements and plan disclosures. Depending on your service agreements, you may be paying a per-participant fee to maintain these terminated account balances. Discuss with your advisor if it would be beneficial to initiate a force-out campaign – following the terms of your plan document, of course!
Look ahead
You have three quarters left to achieve the goals initially set for 2018. Preparing participants for retirement might be high on the list (we sure hope so!), but have you put plans in place to make it happen? Pull out your calendar and prioritize time for your employees – schedule enrollment and engagement meetings to increase their financial wellness. Equip them with the tools they need to succeed. Determine the metrics you’ll use to track their progress, then decide next steps based on that data.
Being a plan fiduciary is not a duty to take lightly – there are many administrative and compliance-related tasks to perform. But we do believe you should take pride in being a good steward of your company’s retirement plan assets, because it means you are better equipping your employees for retirement. After all, the primary purpose of a retirement plan is to provide benefits for plan participants and beneficiaries. So roll up your sleeves and take time to polish your plan.
Our team at Shepherd Financial is passionate about creating retirement-ready employees and responsible plan fiduciaries. One of the many ways we achieve these goals is through our extensive fiduciary training. Committee members and key personnel are equipped with critical knowledge to properly execute their roles and responsibilities. As a result, participants may achieve more successful outcomes, because their plan is carefully developed and monitored.
An important component of fiduciary training is learning how to monitor investments. This includes the following tasks:
- Setting overall objectives and investment strategies for the plan
- Selecting appropriate investments in light of these goals and strategies
- Monitoring the plan’s investment options on an ongoing basis
- Adding or removing investments, when warranted, over time
- Ensuring the investment options meet the provisions of the investment policy statement (IPS)
- Reviewing the organizational structure of the portfolio managers
As you think about investment selection and monitoring within your own plan, there are certainly many factors contributing to participant retirement readiness, but selecting an appropriate qualified default investment alternative (QDIA) is critical; without an approved QDIA, participants who are not actively engaged or knowledgeable in selecting their investment mix could wind up in a fund that is not suitable for their circumstances. An approved QDIA can consist of a target date retirement fund, a balanced fund, or a professionally managed account. Notice requirements must also be met for a fund to qualify as a QDIA.
Three factors should be considered when selecting the QDIA for your plan: your participant base, risk, and the elements of a periodic review.
1. Participant Base
Think about the characteristics of your participant population, such as their salary levels, contribution rates, typical retirement age, and post-retirement withdrawal patterns. Also consider their ability to stick with the default fund over time.
2. Risk
Risk, rather than returns, is a critical component impacting participant behavior. Make sure you understand the inherent risk associated with the QDIA – for a target date fund, examine the glidepath, asset classes, and how the asset allocation can impact participants at different phases (accumulation, nearing retirement, at retirement, and beyond retirement).
3. Periodic Review
In addition to performance, risk, and fees, determine if any information used in the initial selection of the QDIA has changed. Consider fund manager, strategy, or objective changes, as well as if your initial objectives for the QDIA itself have changed.
Shepherd Financial is a fiduciary, in writing, for each of our clients. Our commitment to this standard permeates our fiduciary training, fund screening, and due diligence processes, because we believe in working together with plan sponsors and participants to help pursue retirement health.
There is no assurance the Fund will achieve its investment objective. The Fund is subject to market risk, which is the possibility that the market values of securities owned by the Fund will decline, and, therefore, the value of the Fund shares may be less than what you paid for them. Accordingly, you can lose money investing in a Fund. A plan of regular investing does not assure a profit or protect against loss in a declining market. You should consider your financial ability to continue your purchase throughout periods of fluctuating price levels. Please obtain a prospectus for complete information including charges and expenses. Read it carefully before you invest or send money. None of the information in this document should be considered as tax advice. You should consult your tax advisor for information concerning your individual situation.
Risk-adjusted performance is the performance of a security or investment relative to its risk. One may calculate the risk-adjusted performance in a number of ways. One may consider the investment’s volatility. Alternatively, one may compare its performance to the performance of the marketa s a whole or relative to securities or investments with similar levels of risk.
Investments in Target Date Funds are subject to the risks of their underlying funds. The year in the fund name refers to the approximate year (the target date) when an investor in the fund would retire and leave the workforce. The fund will gradually shift its emphasis from more aggressive investments to more conservative ones based on its target date. The principal value in a Target Date Fund is not guaranteed at any time, including on or after the target date, which is the approximate date when investors turn age 65. Should you choose to retire significantly earlier or later, you may want to consider a fund with an asset allocation more appropriate to your particular situation. The funds invest in a broad range of underlying mutual funds that include stocks, bonds, and short-term investments and are subject to the risks of different areas of the market. The funds maintain a substantial allocation to equities both prior to and after the target date, which can result in greater volatility. All investing is subject to risk, including the possible loss of the money you invest. Diversification or asset allocation do not ensure a profit or protect against a loss. Investments in bonds are subject to interest rate, credit, and inflation risk.
A Balanced Portfolio is a portfolio allocation and management method aimed at balancing risk and return. Such portfolios are generally divided equally between equities and fixed-income securities.