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“What is the ’20 percent rule’ when defining highly compensated employees?”

“I’m familiar with the IRS’s standard definition of highly compensated employee (HCE) for retirement plans, but recently I overheard another advisor talk about applying the “20 percent rule” when determining HCEs for plan purposes. What is the 20 percent rule?”

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 an advisor in New Jersey addressed a question on the definition of highly compensated employee (HCE).

Highlights of the Discussion

In lieu of using the IRS’s standard definition of HCE, a plan sponsor has the option of applying the 20 percent rule, otherwise known as a “Top Paid Group” election. This election allows the plan to limit the number of HCEs based on compensation to only those who are in the top 20 percent of all employees when ranked by pay.

Employers with many HCEs as determined under the standard definition of HCE, sometimes make Top Paid Group elections to limit the overall number of HCEs for plan testing purposes if the election will help them satisfy nondiscrimination requirements. Plan sponsors should work with their TPAs and recordkeepers to determine if a Top Paid Group election makes sense for their plans.

The definition of HCE for a plan is contained in the governing plan document. Generally, under IRC Sec. 414(q)(1), an HCE for a plan is a participant who either

1. Owns more than five percent of the company at any time during the current year, or the immediately preceding year; or
2. Received compensation exceeding the IRS-prescribed limit for the immediately preceding year (look back) ($130,000 for 2021 and $135,000 for 2022). [See IRC Sec. 414(q)(1)(A) and (B)]

Under the Top Paid Group election [IRC Sec. 414(q)(1)(B)(ii)], a plan participant is an HCE if he or she

• Earns over the income limit for the look-back year (as mentioned above) and
• Is within the top 20 percent of all individuals at the company when they are ranked by compensation during the look-back year.

More than 5% owners would also be HCEs if a Top Paid Group election is made.

A Very Simple Example:
Participant   % Owner   Look-Back Comp   HCE Standard   HCE Top Paid Group
Alpha            50               $750,000                Yes                        Yes
Bravo              0               $650,000                Yes                        Yes
Charlie           0               $600,000                Yes                         No
Delta              0               $130,000                 Yes                         No
Echo             50                $125,000                Yes                        Yes
Foxtrot           0                $  95,000                 No                        No
Golf                0                $  60,000                  No                        No
Hotel              0                 $   45,000                No                        No
India               0                $   35,000                 No                        No
Juliet              0                $   30,000                 No                        No

As the chart illustrates, under the standard HCE definition, HTK Inc., has five HCEs (i.e., Alpha, Bravo, Charlie, Delta and Echo). If HTK Inc., makes a Top Paid Group election, there are three HCEs (i.e., Alpha, Bravo and Echo). Charlie and Delta are no longer considered HCEs because they are not in the top-paid group, and they do not own more than 5% of HTK.

Conclusion

HCEs in a plan can be determined under the IRS’s standard or Top Paid Group definition. Plan sponsors should always check the terms of their plan document to see which definition applies, and work with their TPAs and recordkeepers to ensure proper application.

 

 

©2022 Retirement Learning Center, LLC

 

 

 

 

© Copyright 2024 Retirement Learning Center, all rights reserved
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Applying a QACA Election

“My client is implementing a QACA in her 401(k) plan. Does she have to apply the default election provision to all participants?”

Highlights of the Discussion

In general, according to IRS rules, your client would not have to apply the QACA default election to any employee who is eligible to participate in the 401(k) plan prior to the effective date of the QACA and has a previous salary deferral election in place or has affirmatively elected not to defer at all [ Treas. Reg. § 1.401(k)-3(j)(1)(iii)].

However, your client should check the terms of the plan document for the precise application of the default election. Sometimes a plan can be designed to apply the default election to those participants whose current deferral percentages are less than the QACA default deferral percentage.

Also, it could be possible for a plan to contain a provision where a participant’s current election expires after a set amount of time. In that case, the plan could then apply the QACA default percentage unless the affected participant executes another affirmative deferral election or opts out.

Conclusion

In a 401(k) plan with a QACA, there are exceptions to applying the QACA default deferral percentage. The best source to turn to is the plan document for the precise application of the QACA default election.

© Copyright 2024 Retirement Learning Center, all rights reserved
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When a Governance Review Reveals Something is Missing

“What should a plan committee include in its governance process?”

The Retirement Learning Center works with plan committees to help assess the effectiveness of their plan governance process. This process, known as a governance review, consists of reviewing various plan related documents to help assess how well the plan committee is satisfying its ERISA obligations. Recently, RLC completed a review for an organization in the Midwest and it was clear- something was missing.

We had requested and received the prior three years of agendas, meeting minutes and handouts, service agreements, the investment policy statement (IPS) and the plan document.

The documentation we reviewed was good. The meeting minutes were clear and well done; the investment review and assessment process was thorough and it appeared the IPS was followed appropriately. A solid array of investment options was maintained for the benefit of the participants.

Our concern was not what we saw but what was absent in meeting minutes and other materials.

The committee’s documentation only addressed investment-related issues and was devoid of any consideration or issues other than the investment process. Pursuant to the plan committee meeting minutes, no non-investment topics were ever discussed. RLC’s view is that  such an omission is problematic.

Good governance goes beyond oversight of the investment options. A good governance process should include ongoing

  • Fiduciary education,
  • Reviews of service agreements and standards,
  • Evaluations of plan documents and amendments,
  • Analyses of annual plan audits,
  • Checks on payroll remissions and
  • Participant notices and communication and
  • Government reporting.

Those are just a few of the key elements that a governance committee should evaluate, document and reflect in the agenda and meeting minutes.

A good governance process extends beyond oversight of the investment menu. We encourage plan officials to ensure their governance process is holistic and covers all aspects of plan operations, communications, and overall plan effectiveness.

 

© Copyright 2024 Retirement Learning Center, all rights reserved
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Brokerage Windows–A Matter of Prudence

“Several of my plan sponsor clients are considering adding a brokerage window to their plans’ investment line ups. Is that a good idea?”

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 an advisor in Georgia is representative of a common inquiry related to 401(k) plan investments.

Highlights of Discussion

Adding a brokerage window to a plan’s investment menu is not a question of good or bad, but of prudence and loyalty under ERISA’s best interest standards. As clearly stated in Q&A 39 of Field Assistance Bulletin 2012-02R, plan sponsors that utilize brokerage windows that enable participants and beneficiaries to select investments outside of their plans’ designated investment alternatives (DIAs) have a statutory and ongoing fiduciary duty to evaluate whether such options are prudent investment alternatives for their plans under ERISA Sec. 404(a).

Further, with respect to participant disclosures related to brokerage windows, a plan sponsor must provide a(n)

  1. General description of the brokerage window (or like arrangement) sufficient enough to enable participants and beneficiaries to understand how the window works;
  2. Explanation of any fees and expenses that may be charged against the individual account of a participant or beneficiary on an individual, rather than plan-wide, basis in connection with the window; and
  3. Statement of the particular service and dollar amount of fees and expenses that actually were charged during the preceding quarter against the participants’ accounts in connection with the window.

While the DOL, clearly, does not prohibit the use of brokerage windows within self-directed plans, neither has it given much regulatory guidance on the matter. The ERISA Advisory Council confirmed the lack of solid guidance in a December 2021 study, “Understanding Brokerage Windows in Self-Directed Retirement Plans.”  However, most Council members did not believe that additional guidance in this area was needed. “In this regard, the Council observed that the marketplace seemed to be functioning well.”  The Council did recommend the DOL consider further fact finding related to brokerage-window-only (BWO) plans (i.e., plans that have no DIAs and brokerage accounts are the sole investment option) out of a concern “… that those types of plans may not incorporate the spirit of ERISA’s intent and protections for financially inexperienced employees and may need the Department’s attention …”

With respect to brokerage windows, the question for plan officials is whether such an arrangement, as a whole, is a prudent option for a plan and its participants (not each of the investment alternatives within the window).  That said, it seems the DOL may begin peeking inside the window a bit further. In Compliance Assistance Release No. 2022-01,  the DOL commented to the effect that if plan participants can access investments the agency deems “risky” through a brokerage window, “… plan fiduciaries responsible for … allowing such investments through brokerage windows should expect to be questioned about how they can square their actions with their duties of prudence and loyalty in light of the risks  …”

Conclusion

The DOL will hold plan fiduciaries and other officials to the ERISA standards of prudence and loyalty with respect to offering brokerage windows within self-directed plans. Such individuals and their advisors should be prepared to offer documentation in defense of their decisions and actions.

© Copyright 2024 Retirement Learning Center, all rights reserved