retirement plan
Print Friendly Version Print Friendly Version

Reclassified Workers

“I have a client who is converting his 401(k) plan from one TPA to another and switching plan documents. In the switch, we discovered the original plan references ‘reclassified employees.’ Can you shed some light as to the relevance of this reference?”  

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Massachusetts is representative of a common inquiry related to employee classifications for plan purposes.

Highlights of the Discussion

Worker classification is a high priority for the IRS because it affects whether an employer must withhold income taxes and pay Social Security, Medicare and unemployment taxes on wages paid to an employee. Worker classification also affects whether a participant will be considered eligible to participate in a qualified retirement plan sponsored by an employer.

For example, businesses normally do not have to withhold or pay any taxes on payments to workers classified as independent contractors. The earnings of a person working as an independent contractor are subject to self-employment tax and are, generally, reported on a Form 1099-MISC, Miscellaneous Income. Because they do not meet the definition of eligible employee for retirement plan purposes, independent contracts are excluded from participation in any retirement plan sponsored by their employer. An independent contractor would have the ability to establish his or her own retirement plan based on his or her self-employment earnings.

In the past decade, the IRS has undertaken a series of employment tax audit initiatives focused on worker classification issues—especially on employers who have treated workers as independent contractors when they should have been treated as common law employees. (See IRS Topic No. 762 Independent Contractor vs. Employee.) Since 2011, the IRS has sponsored a Voluntary Classification Settlement Program (VCSP) that provides an opportunity for taxpayers to reclassify their workers as employees for employment tax purposes for future tax periods with partial relief from federal employment taxes. To participate in this voluntary program, the taxpayer must meet certain eligibility requirements and apply to participate in the VCSP by filing Form 8952, Application for Voluntary Classification Settlement Program, and enter into a closing agreement with the IRS.

For retirement plan purposes, whether an employer will have to retroactively cover workers who have been reclassified as common-law employees will depend on the plan document language. Some plans only require employers to cover reclassified employees prospectively as of the date the IRS makes a formal determination as to the individual’s employee status. Other plans allow the employer to elect or may mandate retroactive coverage of reclassified employees. Consequently, plan sponsors should review their plan documents for language that addresses reclassified employees to determine their proper treatment. Should an employer discover that it has prevented otherwise eligible employees from participating in the plan, a prudent course of action would be to consider the correction provisions of the IRS’s Employee Plans Compliance Resolution System  for exclusion of an otherwise eligible employee.

Conclusion

Not only do reclassified employees affect payroll departments, they also can impact retirement plan operations. Therefore, plan sponsors have an obligation to properly categorize workers, and treat such workers for plan purposes according to the terms of their plan documents.

© Copyright 2019 Retirement Learning Center, all rights reserved
pension
Print Friendly Version Print Friendly Version

Purchasing Service Credits in a Defined Benefit Plan

“My client has a job with the government. She is asking me about purchasing service credits in her retirement plan. Can you explain what she might be talking about?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Minnesota is representative of a common inquiry related to governmental plans.

Highlights of the Discussion

Generally, service credit is credit for work performed for which your client may earn a benefit under a defined benefit pension plan. Many states allow their public employees to purchase permissive service credits for previous years of service which, otherwise, would not count in the pension. It commonly happens when an employee terminates governmental employment prior to vesting, but later becomes employed in another governmental position [IRC §415(n)]. In order to purchase the service credit, the employee must make a voluntary additional contribution, in an amount determined under such governmental plan, which does not exceed the amount necessary to fund the benefit attributable to such service credit [IRC §415(n)(3)(A)(iii)].

Whether a governmental worker may purchase service credits depends on the particular retirement system. If he or she is eligible, then the retirement system determines the cost of the purchase. The plan usually limits the number of years of service credit that a participant may purchase. The retirement system usually provides different payment options, which may include the following:

  • A lump-sum payment for the full cost;
  • Payroll deductions over a period of time; and
  • Direct rollovers or trustee-to-trustee transfers of amounts from a qualified plan (including a 401(k) plan, a 403(b) plan or state or local government 457 plan).[1]

Conclusion

Because the ability to purchase service credits in a governmental defined benefit plan is dependent on the particular retirement system, reviewing specific plan documentation and forms is essential to determine if the option is available, what payment methods may be used and how to request the purchase.

[1] The Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) broaden the third option to permit funds from 403(b) and 457 plans to be transferred on a pretax basis to purchase service credit, or to repay prior cash-outs of benefits, in governmental defined benefit plans. Previously, these transfers were only allowed from qualified plans, such as 401(k) plans.

 

© Copyright 2019 Retirement Learning Center, all rights reserved
pension benefits
Print Friendly Version Print Friendly Version

Hybrid retirement plans

“Is ‘hybrid’ just another name for a cash balance defined benefit plan?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from Colorado is representative of a common inquiry related to hybrid plans.

Highlights of the Discussion

Sort of—a cash balance plan is a type of hybrid defined benefit plan; a pension equity plan is another type of hybrid plan. The term hybrid applies to a category of defined benefit plan that uses a lump-sum based formula to determine the guaranteed benefit (rather than a formula based on years of service and compensation as is the case with most traditional defined benefit plans). A participant must refer to plan documentation to determine which type he or she may have.

Functionally, hybrid plans combine elements of traditional defined benefit plans and defined contribution plans. Hybrid plans specify contributions to an account (or balance) like a defined contribution plan, but guarantee final benefits like a defined benefit plan. Such plans grow throughout an employee’s career and allow employees to see that growth through an account balance. There are basically two types of hybrid plans: cash balance and pension equity. The account for each participant in a hybrid plan is theoretical, and is not actually funded by employer contributions. The employer contributes to the plan as a whole (covering all eligible workers in the plan) to ensure that sufficient funds will be available to pay all benefits.

Cash balance plans were the first type of hybrid plan, emerging in the late 1980s.[1] Under a cash balance plan an employee’s hypothetical account balance is determined by reference to theoretical annual allocations based on a certain percentage of the employee’s compensation for the year and hypothetical earnings on the account. In a typical cash balance plan, a participant’s account is credited each year with a pay credit (such as 5 percent of compensation from his or her employer) and an interest credit (either a fixed rate or a variable rate that is linked to an index such as the one-year Treasury bill rate).

Another common type of hybrid plan is a pension equity plan or PEP. While pension equity plans and cash balance plans share methods of accumulating value, a major difference is the earnings used to determine the benefit. Cash balance plans specify a credit each year, based on that year’s earnings, whereas pension equity plans apply credits to final earnings (IRS Notice 2016-67).

While traditional defined benefit plans specify the primary form of distribution as an annuity (with lump sums sometimes given as a optional form of benefit), hybrid plans specify the primary form of distribution as a lump sum, which can be converted to an annuity (see Treasury Regulation 1.411(a)(13)–1). Pursuant to Revenue Procedure 2019-20, the IRS provides a limited expansion of IRS’s determination letter program for individually designed retirement plans to allow reviews of hybrid plans, as well as merged plans.

The Bureau of Labor Statistics has put together the following comparison table showing the similarities and differences between cash balance and pension equity plans.

table

Conclusion

The term hybrid plan refers to a category of defined benefit plans that uses a lump-sum based formula to determine guaranteed retirement benefits. Cash balance and pension equity plans are the two most common types of hybrid plans. The provisions of the governing plan document will specify which type of hybrid plan a participant may have.

[1] Bureau of Labor Statistics

 

© Copyright 2019 Retirement Learning Center, all rights reserved
Governance
Print Friendly Version Print Friendly Version

What is plan governance?

What is plan governance?

By W. Andrew Larson, CPC

It is our view that the goal of retirement plan governance is two-fold. First, plan governance should ensure that a business’s retirement plan is operated in compliance with Federal laws and regulations.  Second, plan governance should position participants to maximize their chances for successful retirement outcomes. That’s what plan governance should do.  But what is plan governance? Plan governance is a consistent, flexible, ongoing process that is well documented and transparent. This blog will explore, at a high level, what a plan governance process looks like; the make-up and role of the plan governance team; how to deal with service providers; and what it means to be a good consumer of fiduciary services.

No one aspect of plan governance is inordinately difficult; what is difficult is the ability to remain focused, and consistently execute and document the governance process. Typically, plan committee members have day jobs and their plan duties are usually far down on their to-do lists. Given this reality, committee members must diligently help each other create and follow accountability strategies, plus leverage service providers for assistance when needed.

What does a plan governance process look like?

A good governance process includes the following key elements.

Charter

The charter is the blueprint for what is done when and by whom with respect to the retirement plan. Many plans don’t have governance charters. Creating one is essential for establishing a good governance process. The charter addresses details such as who is on the plan committee, the frequency of committee meetings, roles, assignments and expectations, lines of authority and decision-making responsibilities.

The first step in creating the charter is a careful review of the governing plan document to ensure the charter is consistent with the plan in terms of provisions, terminology, lines of authority and reporting. Frequently, any governance provisions that may appear in plan documents are sparse; hence the need for a more robust document in the form of a charter. That said, the charter must be consistent with the plan document or the committee risks not following the terms of the plan, which would be a violation of legal requirements under the Employee Retirement Income Security Act of 1974 (ERISA).

Master Calendar

A master calendar is the plan committee’s essential “must-do” list. It is an important tool to make sure the committee is timely addressing its responsibilities. Standing annual calendar items can include the following items:

    • Review the plan document for needed amendments;
    • Review and assess service providers;
    • Benchmark and evaluate assets;
    • Schedule educational sessions for committee members;
    • Assess the adequacy of the plan’s fidelity bond; and
    • Evaluate committee members based on skill sets needed.

Documentation Protocol

Having detailed documentation of plan committee activity and decisions is a vital part of any liability containment strategy. Plan notes should be thorough and identify the rationale for key decisions made.

Payroll Log

This is a record of all payroll withholding and remission dates and amounts. One of the top concerns of the Department of Labor and IRS in plan operations relates to the timely deposit of employee salary deferrals.

Who’s on the plan governance team?

The make-up of the plan governance committee is one of the least discussed aspects in the realm of plan governance. And it often seems that committee membership comes with lifelong tenure. As we work with committees, we frequently inquire why “so and so” is on the committee. The typical response is something to the effect of “Well, they’ve always been on the committee.” We urge committees to conduct a periodic reset exercise where they identify the skill sets needed for a successful committee. Once the skills are identified, we then ask them to identify specific individuals—including those who may not be current committee members—who fit the skill set profile. This creates discussion of who could or should be on the committee.

It has been our experience that we often find the wrong people on plan governance committees. In many cases, there are people within the organization who want to be on the committee—and should be—but are not considered for membership. Let me share a personal experience illustrating this. I was on the plan governance committee of a former employer. Most decisions we made were second guessed and challenged by one particular noncommittee member employee. This guy read every bit of plan information that was provided. Not only did he read it, he studied it and complained about everything. He was a pain in our rear. However, it became clear this guy had a passion for plan stuff and a real willingness to study, learn, understand and question. He was “the guy” other employees sought out if they had plan questions. We began to discuss adding him to the committee. At first there was considerable pushback because he had been such a nuisance, but it was clear he did his homework and took the subject matter seriously. We added him to the committee on an interim basis, despite some trepidation. Now the end of the story—he became the hardest working and, arguably, the most educated and dedicated committee member. He wanted to do the legwork, was willing to be a team player and, ultimately, was the biggest fan of the plan and supporter of its governance team.

What does the team or committee need to know?

The short answer to this question is the plan governance team must know enough to successfully run the plan. ERISA requires plan committee members be held to an expert standard in terms of their decision making with respect to the plan. This does not mean the committee members have to be expert in all topics, but they need to understand what they don’t know and when they need to enlist additional, expert-level support to make prudent decisions. At a minimum, committee members need a general understanding of the following tenets:

  • ERISA governance requirements;
  • Key plan document provisions;
  • Service providers duties, costs and contractual expectations; and
  • Reporting and compliance requirements.

Understanding what plan service providers do and don’t do is commonly a mystery to many plan committees. More service provider training and understanding is a common recommendation we make to plan committees.

Why are we hiring a fiduciary?

In recent years, many organizations have begun to offer various fiduciary services to retirement plans. Plan committees have many fiduciary support options from which to choose. One of the most important governance decisions a plan committee will ever make is whether to retain an outside fiduciary. There are right and wrong reasons to retain an outside fiduciary, and plan committee records and/or minutes should articulate the rationale for any fiduciary-related decision made by the committee. For example, a committee retaining an outside fiduciary to reduce committee members’ liability may be selecting a fiduciary for the wrong reason. Retaining a fiduciary to reduce the committee’s workload may be a valid reason to retain a fiduciary. Effectively, hiring a fiduciary doesn’t limit the committee’s liability; retaining a fiduciary merely changes the nature of the committee’s responsibilities to overseeing the retained fiduciary.

And it is important to remember that all fiduciaries are NOT created equal. There are important differences among providers that should be discussed and documented in the decision-making process, and reflected in service agreements. This is what I mean by being a good consumer of fiduciary services.

Conclusion

Good governance comes down to having the right people, with the right support following a consistent process, and documenting decisions and actions. It means asking probing questions and realizing when outside, nonconflicted support is necessary. The rationale for key decisions and the recording of such is as important as the decision itself.  Maintaining a solid governance process is the best strategy to help minimize the liability of the plan sponsor and plan committee, and provide participants with the best opportunity for successful retirement outcomes.

© Copyright 2019 Retirement Learning Center, all rights reserved
Print Friendly Version Print Friendly Version

Where, oh where, have my retirement benefits gone?

“I have a client who has worked in the banking industry for decades and has changed jobs numerous times. Many of his former employers have merged with other institutions or no longer exist. He is not currently receiving any retirement benefits from these past employers, but feels certain he should be. How can he locate his lost retirement plan benefits?”

ERISA consultants at the Retirement Learning Center (RLC) Resource Desk regularly receive calls from financial advisors on a broad array of technical topics related to IRAs, qualified retirement plans and other types of retirement savings and income plans, including nonqualified plans, stock options, and Social Security and Medicare. We bring Case of the Week to you to highlight the most relevant topics affecting your business.

A recent call with a financial advisor from New Jersey is representative of a common inquiry related to locating lost retirement plan benefits.

Highlights of the Discussion

Given the frequency with which the average U.S. worker changes jobs throughout his or her career (i.e., 12 times)[1], and the merger and acquisition activity in the past decades, it should not be surprising that some workers have lost track of their retirement plan assets. The Employee Retirement Income Security Act of 1974 (ERISA) requires plan sponsors to make efforts to find missing plan participants.[2]

Former participants can take matters into their own hands and search for retirement benefits to which they believe they are entitled. Below is a list of options for locating lost retirement plan assets. There may be other resources as well.

  1. Contact former employer(s) directly if they still exist. Check old tax forms, Forms W-2 and other employment-related documents.
  2. Contact the plan’s recordkeeper or third-party administrator (TPA). This information likely appears on an old plan statement, if available.
  3. Search the Department of Labor’s (DOL’s) Form 5500 database of filings (Form 5500/5500-SF Filing Search) for plan administrator contact information. Many qualified retirement plans are required to file this annual plan report with the IRS and DOL. Using the employer’s tax identification number may be helpful in locating employers and plans that have been merged or changed names.
  4. Try the DOL’s searchable database of abandoned plans, which contains information on retirement plans that have been forsaken by their sponsors.
  5. The Pension Benefit Guaranty Corporation (PBGC) has two ways to assist in benefits searches. First, search the PBGC’s database for unclaimed defined benefit plan pensions. Searchers can also try to locate a plan by whether it is insured or trusteed by the PBGC. Second, search the PBGC’s list of missing participants. As of January 1, 2018, terminating defined contribution plans have the option of transferring missing participants’ benefits to the PBGC for eventual distribution.[3]
  6. Every state has some type of unclaimed property program. Plan sponsors who have failed to locate missing participants or beneficiaries may have escheated the retirement plan assets to their respective state programs. The National Association of Unclaimed Property Administrators is a not-for-profit organization that maintains a database of state programs to help individual’s find missing property.
  7. Searchers could check with The National Registry of Unclaimed Retirement Benefits to see if a former employer has listed a particular person as a missing participant. The registry is a nationwide, secure database listing of retirement plan account balances that have been left unclaimed.
  8. Watch for a notice from the Social Security Administration (SSA): Potential Private Retirement Plan Benefit Information. It is a reminder about private employer retirement benefits that an individual may have earned, also called “deferred vested benefits.” The IRS provides the information to the SSA. It comes from the plan administrators of the private retirement plans in which workers participated.
  9. The nonprofit organization Pension Help America may be able to link searchers with local and regional governmental offices to help locate retirement plan assets and/or solve other benefit issues.

Conclusion

Individuals who have lost track of their retirement plan benefits for whatever reason have several federal, state, regional and local resources available to help them find the retirement benefits to which they are entitled.

[1] https://www.bls.gov/news.release/pdf/nlsoy.pdf

[2] https://www.irs.gov/retirement-plans/missing-participants-or-beneficiaries

 

[3] https://www.pbgc.gov/prac/missing-p-defined-contribution

 

© Copyright 2019 Retirement Learning Center, all rights reserved