Yes, Plan Sponsors are Still Fiduciaries

 

fiduciary

You may be confused by the recent news about the DOL Fiduciary Rule: Was the rule declared invalid? Will the SEC move ahead with its own Fiduciary Rule?  Will the Supreme Court issue a decision? Your confusion is appropriate as the status and future of the DOL Fiduciary Rule is still in flight. However, one constant remains and that is the Plan Sponsor’s fiduciary duty to the Plan and its participants.

ERISA and the DOL

The DOL’s Fiduciary Rule was finalized in 2016 and was supposed to go into effect at the start of 2018.

This rule was designed to eliminate financial advisor conflicts of interest when dealing with client retirement accounts. While it had provisions relating to 401(k) plans, it’s important to remember that any delay or even the possible nullification of the rule does not impact the fiduciary duties of a 401(k) plan sponsor.

Any financial advisor who works with plan sponsors can help ensure that their clients are aware of this.

A sponsor’s fiduciary role

 ERISA cites five standards of fiduciary care on sponsors of retirement plans. These boil down to the fact that a plan sponsor must make all decisions with the best interests of the plan participants in mind.

One key standard that has received attention in recent years is the responsibility to keep expenses low for plan participants.

While there is no firm standard for this, this issue has been the basis of a number of lawsuits against plan sponsors. Most of these suits have been brought against large employers, however, in recent years, even smaller plans have not been immune.

Reach out to clients now

 Periods of market volatility signal good opportunities to reach out to your current and prospective clients.

Start by confirming that their current plans are low cost and perform relative to their asset class peers. Find out:

  • Are all fees and expenses transparent, both those that are paid from the participant’s accounts and those paid by the sponsor?
  • Is there a process in place to select, monitor, and (when needed) replace investment choices?

Ideally, your client has an Investment Policy Statement in place for the plan. A solid, consistent, and documented investment process is a great way to demonstrate that the sponsor is acting in a responsible fiduciary capacity.

Beyond just meeting their fiduciary obligations, savvy plan sponsors want to provide the best possible retirement vehicle for their employees (and themselves) to ensure that employees can retire on time.

Advisors are also fiduciaries

 As an advisor you have two options as a fiduciary.

A 3(21) fiduciary serves as a co-fiduciary with the plan sponsor making all final decisions as to the plan’s investments and other decisions including the selection of service providers.

A 3(38) fiduciary has the discretion to make all investment and provider decisions; this is delegated to the advisor by the sponsor.

Giving a Plan Checkup Now Can Mean Big Savings Later for Clients

Plan Checkup

Many plan sponsors are (or should be) starting to think about their Form 5500 filing and annual compliance testing. That means it is also a great time for advisors to help clients conduct a plan checkup. A good checkup can reduce future costs, administrative headaches, and fiduciary liability. Here are some steps to help you start the process with your plan sponsors.

  1. Make sure Their current plans are compliant

Ensure your sponsors have reviewed all plan documents and communications with their participants within the past 12 months. Changes in a business may produce unexpected and unnoticed changes in a plan’s operation, so it’s important to review plan language and features. Consider including the service providers who regularly work with each plan to help spot issues that may have been overlooked. Some questions to ask when meeting with your client for a review include:

Have you had any mergers, acquisitions, or changes in ownership in the past plan year? Structural changes to their organization will warrant updated plan documents and need to be communicated to your retirement service providers.

Are you a part of a Control Group or an Affiliated Service Organization? A controlled group and affiliated service organization are categories used to describe businesses that are related in some way, usually by family ownership. Knowing whether your client falls into one of these groups or if the employer owns multiple business with different retirement plans can have an important effect on the way a sponsor’s plan is set up for their employees.

Do you have a Fidelity Bond? ERISA requires that every fiduciary of an employee benefit plan and every person who handles plan funds be bonded, so ensure your client’s plan is compliant to avoid penalties. These bonds cover the plan from loss of assets due to fraud or dishonesty. The fidelity bond is required to protect the participants and beneficiaries from dishonest acts of a fiduciary who handles the plan assets. The fidelity bond must be at no less than 10% of plan assets with a minimum of $1,000 and a maximum of $500,000.

How are you tracking the accuracy of administrative tasks? Administrative mistakes are common and easy to make, but the sooner the plan sponsor finds them, the easier and less costly they are to fix.  Some common errors are late payrolls, loan issues, and improperly communicating with terminated  employees who have account balances.

  1. Consider plan changes that will better suit your clients

Your clients are the experts on their businesses—but you’re the expert on their plans. As your check in with your plan sponsors, revisit the features of their plans to see what needs to be changed to better suit their goals.

How is enrollment set up? A retirement plan isn’t doing employees any good if they aren’t participating in it. If auto-enroll isn’t set up, speak with your client about its benefits. Without this feature, plan participation averages  63% for 401(k) plans yet jumps to 90% when auto enroll is enacted. Another way to potentially increase employee contributions? Consider adding auto escalation to automatically increase their contributions year over year.

Do the investment offerings still suit the company? Revisit the investment options the plan currently has and how they are being used. Employees’ goals and risk tolerance may have changed over time.

Have you compared costs? Your service provider’s fees should be reasonable. Consider conducting a benchmarking exercise or issuing a request for proposal from multiple service providers to compare their fees. If you’re looking to dig into a 408b(2) disclosure and don’t know where to begin, we can help.

3. Stay in contact—your clients will appreciate it

After checking in with your plan sponsors, take the next step and meet with their employees as well.  Schedule a time each year to educate participants on the basics of a 401(k) and how they can take advantage of this important savings tool. Here are some key points to cover:

What is the difference between a 401(k) and an IRA?

  • What is the impact of investing now?
  • Should I change my investment selections year over year?
  • How do I navigate my account?
  • How do rollovers works?
  • How do beneficiaries work?

All it takes is a few simple questions to ensure that your plans are correct, your platform includes the best features, and your participants are getting properly educated. Your clients will be impressed with the thoughtfulness you put into their plan and thankful that they have an expert to lean on.