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Employee Benefits Law Report

Reporting on recent trends and developments affecting employee benefits

Here we go again: Does the DOL’s request for information regarding self-directed brokerage accounts mean new fee disclosure requirements are coming soon?

Posted in ERISA Fiduciary Compliance

If you’re a fan of the tv show “The Simpsons,” you might remember an early episode where Homer Simpson launched a crusade against every public safety issue in the city. The result was practically every square inch of the town contained signs alerting people to every dip, pothole, and other nuisance on the roads. After watching that episode again recently (we won’t admit which one of us got sucked into the tv marathon), we were reminded of a first year torts class in law school that discussed the efficacy of public safety notices. The professor made the comment, “A wealth of information leads to a poverty of attention.”

That comment is especially fitting with respect to ERISA fee disclosures, particularly regarding defined contribution plans. Recently, the DOL requested information and comments about self-directed brokerage accounts (“SDBAs”). The DOL’s history with trying to provide guidance on SDBAs provides a great illustration of the difficulty of determining how much information is too much. On one hand, the DOL has been concerned that defined contribution plan participants will be unable to navigate the wide universe of investment options available under SDBAs unless strict procedural rules are in place. On the other hand, the plan sponsor community has tried to make clear that rank-and-file employees typically are not interested in SDBAs. Instead, more sophisticated investors request this feature, and they do not need a detailed protective regime. The DOL, to its credit, has recognized the different points of view on this issue and has sought input to help develop a balanced approach to regulating SDBAs.

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ERISA contractual time limitations for filing civil actions: why you may want to add these provisions to your benefit claim denial letters

Posted in ERISA Litigation

ERISA plan sponsors were given what was described in our earlier post as a “holiday gift” last December with respect to plan-based statutes of limitation when the Supreme Court decided Heimeshoff v. Hartford Life & Accident Insurance Co. There, the Court declared a three-year plan-based (or contractual) time limitation for the filing of an ERISA civil action based on a benefit claim denial to be reasonable. Recently, the Sixth Circuit returned to the subject of plan-based statutes of limitation in Moyer v. Metropolitan Life Insurance Co., decided in August.

In Moyer, a divided panel of the U.S. Court of Appeals for the Sixth Circuit declined to enforce the contractual time limitation expressed in the plan documents, holding that the plan’s administrators did not substantially comply with ERISA Section 503 when they failed to include the plan’s own limitations period for filing an action based on a claim denial in the plan’s denial letter to the participant. ERISA’s Section 503 claims procedures and its explanatory regulations provide that claim denial letters must include a “description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action.” 29 C.F.R. 2560.503-1(g)(iv). Some courts have interpreted this provision to simply require a statement instructing the participant or beneficiary of his/her general right to sue.

However, the Moyer majority did not adopt this view, finding that the inclusion of the time limitation within the plan document did not equate to constructive notice to the participant or beneficiary. Instead, the court held, “[t]he exclusion of the judicial review time limits from the adverse benefit determination letter was inconsistent with ensuring a fair opportunity for review and rendered the letter not in substantial compliance….” with the ERISA requirements. As a result, the Sixth Circuit found that the notice was insufficient to trigger the plan-based limitations period for filing the civil action.

The opinion itself was delivered along with a dissent, positing that majority oversimplified the issue and, in fact, relied upon inadequate briefing as the issue of sufficiency of notice under Section 503 was not central to the appeal. Further, many courts outside of the Sixth Circuit have found that the text of this regulation does not require claims letter disclosure of limitations periods for bringing civil actions. In addition, the dissent opined that the majority gave short shrift to considering whether the Section 503 “substantial compliance test” was satisfied, even if the limitations period was required to be stated. As a result, the Moyer decision does not necessarily suggest a changing of the tide on the issue, but does indicate that the Sixth Circuit takes seriously the need to communicate these provisions to participants in at least some manner other than simply including them in the plan document.

It is important to note here that the summary plan description for the plan at issue in Moyer did not include the plan-based limitations period for filing a civil action. Had the summary plan description disclosed this information (and presuming the summary was properly provided to the participant), the issue may not have progressed to the Sixth Circuit at all. Further, this particular limitations period began running when proof of claim was required, rather than upon adverse determination or upon final determination upon review. Had the statute of limitations run from the final determination upon review, the limitations would not have been pertinent yet at the time of the initial claim denial letter.

Takeaway 

Even if the majority opinion in Moyer fails to apply in other fact scenarios or garner broad support across circuits, at the very least, the decision represents the current interpretation of the law within the Sixth Circuit. For plan administrators of benefits plans governed by the Sixth Circuit and beyond, we’d recommend the same course of action – in drafting future denial of claims letters, any plan-based limitations period should be added to the explanations regarding a participant’s right to bring suit, even if you already include this information in your summary plan descriptions. This is a belt and suspenders approach to compliance, but it is a simple step that could save much consternation and expense down the road. In short, add it to the to do list — the sooner, the better.

Join Us In Cleveland On Thursday, October 23 for The Greatest Seminar on Earth!*

Posted in Events, Health Care Reform
Come one, come all!

Register here

There is no charge for this seminar; however, seating is limited. Please RSVP by Monday, Oct. 20. If you have questions, please contact
Erin Hawk.

Thursday, Oct. 23, 2014

7:45 – 8:30 a.m.
Registration and Breakfast

8:30 – 11:00 a.m.
Program

LockKeepers Restaurant
8001 Rockside Road
Valley View, OH 44125

Come One, Come All!

Feel like a lion tamer or a trapeze artist trying to avoid a risky move or a dangerous misstep?

Join Porter Wright’s Labor and Employment Group in Cleveland on Thursday, October 23 as we present . . .

The Greatest Seminar On Earth!*
The Circus Is Coming . . . To A Workplace Near You

Walking the Tightrope: Balancing Your HR Decision-Making Process to Reduce Risk
Tracey L. Turnbull

In your role, every day is a balancing act. You face significant challenges where one misstep can put your business at risk. In this session, we will review recent significant judicial and administrative decisions addressing a variety of employment law issues. This review will highlight the best practices and instincts that will keep you in balance and aloft.

Become the Accommodation Ringleader: Managing Workers’ Compensation and ADA Issues Effectively
Fred J. Pompeani and Leigh Anne Benedic

Feeling like ADA and Workers’ Compensation issues are a juggling act? In this session, we will help you keep from dropping the ball by discussing key Workers’ Compensation and ADA concerns that any employer might face, and walk you through some of our best practices so you can keep accommodation issues from becoming a circus.

The Healthcare Reform Sideshow Takes Center Stage
Ann M. Caresani

Keeping up with the latest developments in healthcare reform is not a task for the faint of heart. In this session, we will discuss some of the most recent guidance, strategies and issues that employers are dealing with as they strive to get their workforce and their healthcare plans into shape prior to compliance deadlines.

You won’t want to miss this one!

*In our humble opinion

The greatest seminar on Earth! In our opinion...

Join us for our upcoming program in Columbus on the benefits of ESOPs

Posted in ESOPs, Events

Employee Stock Ownership Plans (ESOPs):
A Tax-Advantaged Strategy for Growth, Liquidity and Succession Planning

Tuesday, September 23, 2014

REGISTER NOW BEFORE SEPTEMBER 19!

3:30 – 4:00 p.m. -  Registration
4:00 – 6:00 p.m. - Program

Join us for hors d’oeuvres and cocktails immediately following the program in our Atrium.

Porter Wright
41 S. High Street, 29th Floor
Columbus, Ohio 43215

Complimentary Parking: We will validate parking tickets from the Huntington Garage, located directly behind our building.

In an uncertain tax and financial environment, business owners are increasingly looking at ESOPs as a potential strategy for tax-preferred growth and business succession planning. Join us for two panel discussions as we discuss the ins and outs of ESOPs.

  • The ABCs of ESOPs
  • In this panel discussion, we will cover:
  • What is an ESOP?
  • Why are ESOPs popular?
  • Tax advantages and planning strategies
  • Valuation considerations
  • Creating liquidity for the selling owner
  • Is an ESOP right for your company?

Panelists

Ann Caresani, Partner
Porter Wright
Greg Daugherty, Partner
Porter Wright
Ted Lape, Principal
Lazear Capital Partners
Lori Stuart, Executive
Crowe Horwath LLP

ESOP Success Stories

This panel discussion will feature current ESOP companies discussing why they adopted their ESOP and how it has benefitted their company.

Panelists:

Rich Helmreich, Partner
Porter Wright
Barry Lubow, Vice President and General Counsel
DLZ Corporation
Bob Lyon, President
Lyon Video
Art DeCrane, CEO
FST Logistics, Inc.

Please join us on Tuesday, September 23, to discuss the advantages that ESOPs provide and learn why ESOPs are rapidly gaining popularity as a business succession alternative. 

REGISTER NOW BEFORE SEPTEMBER 19!

SEC money market reform – ERISA impact

Posted in ERISA Fiduciary Compliance

Our sister blog reported recently that the Securities and Exchange Commission (the “SEC”) published final regulations that reform money market mutual funds (“MMFs”). The regulations provide for two core reforms: (1) “Institutional” MMFs, other than those invested primarily in government securities, are prohibited from using a stable net asset value (“NAV”), and (2) MMFs must impose redemption fees or liquidation gates when the fund’s liquidity falls below certain levels. The specific details of these rules are beyond the scope of this blog. Instead, the message of this blog is that these regulations could affect many ERISA plans because MMFs are an important part of the investment strategy of both defined contribution and defined benefit plans. Unfortunately, the regulations raise several ERISA questions and provide little in the way of answers. The SEC has acknowledged these concerns in the preamble of the regulations and has promised to work with the Department of Labor (the “DOL”) to answer these questions. In the meantime, however, plan sponsors and fiduciaries should consider several issues.

1.  General Fiduciary Responsibilities Prime MMFs.
With respect to the requirement that ERISA plan fiduciaries prudently manage plan assets, the DOL staff advised the SEC staff that a MMF’s liquidity and potential for redemption restrictions is just one of many factors a plan fiduciary would need to consider in evaluating the role of a MMF in a plan’s investment portfolio. This issue is a particular concern to defined benefit plans that invest in prime MMFs. Fiduciaries of defined benefit plans must recognize that prime MMFs under the new rules will have more volatility and less liquidity than MMFs that invest in governmental securities. Fiduciaries should consult the fund strategy and investment policies to determine whether prime MMFs still fit in the investment strategy.

Defined contribution plans generally should not have these concerns because under the “retail” exception, MMFs offered as investment options under these plans may still have a fixed $1 per share value.

2. QDIAs.
The SEC acknowledged in the preamble that the imposition of a liquidity fee or redemption gate within 90 days of a participant’s default investment to a MMF could impair the ability of the MMF to qualify for QDIA relief. The SEC cited DOL Field Assistance Bulletin in 2008-03 and said that to avoid this concern, a plan sponsor or service provider could pay the fee rather than the participant. Alternatively, the plan sponsor or other party in interest could loan the funds for the payment of ordinary expenses of the plan for a purpose incidental to the ordinary operating expenses of the plan to avoid the effects of the fee or gate. The preamble to the regulations state that the DOL and the SEC will work together to provide additional guidance on this issue at a later date.

3. RMDs and Refunds.
With respect to the processing of required minimum distributions and certain distributions of refunds on a timely basis, the SEC was less helpful. It said generally that it seems rare that these types of issues would arise. To the extent that a redemption fee prevented a timely distribution of RMDs, the individual could file a Form 5329 with the IRS to require a waiver from excise taxes. The SEC acknowledged in a footnote that the discretion to grant or waive the excise taxes rests with the IRS. Additionally, if a refund could not be distributed in a timely basis because of a redemption fee or gate, and that raised plan qualification issues, employers should consult with EPCRs.

Where Do We Go From Here?
It is encouraging that the SEC and DOL are aware of these issues and have promised to provide guidance in the future. The potential problem, however, is that the DOL or the IRS could take positions in an audit that put the plan sponsors or fiduciaries on the defensive, despite the lack of guidance. What should plan sponsors and fiduciaries do in the meantime? They should review their MMF fund offerings and determine if they continue to remain appropriate investment options. They also should plan for any redemption fees or gates. Finally, they should document any decisions they make with respect to these issues. Hopefully, the SEC and DOL will provide additional guidance in the future that will make these decisions easier. Until then, the classic fiduciary advice of monitoring investments and documenting the reasons for making decisions is critically important.

DOL updates missing participant guidance

Posted in ERISA Fiduciary Compliance

On Thursday, the Department of Labor issued a Field Assistance Bulletin updating its prior guidance on locating missing participants. As before, the guidance technically only applies in the context of terminating defined contribution plans, though the guidance can be instructive for fiduciaries trying to locate missing or unresponsive participants in other retirement plan contexts as well. A central reason for the update from the Department is that two of the mandatory locator options noted in the now 10-year-old prior guidance are no longer available (the Social Security letter forwarding program ceased in May of this year, and the IRS letter forwarding program became unavailable for retirement plans as of August 2012).

The new guidance in FAB 2014-01 reiterates that even though a decision to termination a retirement plan may be a settlor decision, any steps a fiduciary takes to implement such a decision will administrative in nature and subject to ERISA’s fiduciary responsibility provisions. In carrying out this responsibility, the Department basically maintains its prior guidance while replacing the now-unavailable letter forwarding service steps with a requirement to free internet search tools (elevating this step from optional in the prior guidance to required in the current guidance). Accordingly, from FAB 2014-01, these are now the required steps:

  1. Use Certified Mail. Certified mail is an easy way to find out, at little cost, whether the participant can be located in order to distribute benefits. The Department provided a model notice that could be used for such mailings as part of a regulatory safe harbor, but its use is not required and other notices could satisfy the safe harbor.
  2. Check Related Plan and Employer Records. While the records of the terminated plan may not contain current address information, it is possible that the employer or another of the employer’s plans, such as a group health plan, may have more up-to-date information. For this reason, plan fiduciaries of the terminated plan must ask both the employer and administrator(s) of related plans to search their records for a more current address for the missing participant. If there are privacy concerns, the plan fiduciary engaged in the search can request that the employer or other plan fiduciary contact or forward a letter for the terminated plan to the missing participant or beneficiary. The letter would request that the missing participant or beneficiary contact the searching plan fiduciary.
  3. Check With Designated Plan Beneficiary. In searching the terminated plan’s records or the records of related plans, plan fiduciaries must try to identify and contact any individual that the missing participant has designated as a beneficiary (e.g., spouse, children, etc.) to find updated contact information for the missing participant. Again, if there are privacy concerns, the plan fiduciary can request that the designated beneficiary contact or forward a letter for the terminated plan to the missing participant or beneficiary.
  4. Use Free Electronic Search Tools. Plan fiduciaries must make reasonable use of Internet search tools that do not charge a fee to search for a missing participant or beneficiary. Such online services include Internet search engines, public record databases (such as those for licenses, mortgages and real estate taxes), obituaries and social media.

If these steps don’t yield any results, the fiduciary must still consider whether additional steps are appropriate considering account balance size for the missing participants, and cost of search. This is where paid search services come into the equation, such as “commercial locator services, credit reporting agencies, information brokers, investigation databases and analogous services that may involve charges.”  On the topic of charges, the DOL maintains its position that it is permissible to charge individual participant accounts for the efforts made to find participants, provided the charges are reasonable.  The reasonability of charges against participant accounts must be assessed not only in the context of actually charging participant accounts for search expenses, but also in weighing between alternative distribution options if a participant cannot be located, such as fees that would apply to a rolled-over IRA or to a deposit account.  The bottom line here is that while it is permissible to charge participant accounts, fiduciaries cannot attempt to liquidate small account balances through fees and charges, if they are keeping with their fiduciary duties.

Similar to the prior guidance, the new FAB also then lays out distribution options for plan fiduciaries where all required and reasonable searches have not located missing participants. An IRA rollover remains the preferred option (following the applicable safe harbor fiduciary rules for automatic rollovers, linked above), with alternative options to open an interest-bearing federally insured bank account in the participant’s name, or to transfer the account to a state unclaimed property fund. The DOL cautions fiduciaries to keep in mind that the latter two alternatives result in tax consequences to the participant, and that this must be taken into account in determining if these options are in fact appropriate in the circumstances. Taking a clearly skeptical view of these two alternatives, the DOL goes farther that it had in previous guidance in saying ” in most cases, a fiduciary would violate ERISA section 404(a)’s obligations of prudence and loyalty by causing such negative consequences rather than making an individual retirement plan rollover distribution.”

Lastly, the DOL also reiterated that a distribution with 100% income tax withholding (effectively transferring the entire account balance to the IRS), is NOT an acceptable option for fiduciaries in its view.

In the end, this update doesn’t provide much additional guidance for fiduciaries that wasn’t likely being utilized in practice already.  If nothing else, the DOL formalized its foray into modern technology by essentially telling plan fiduciaries to “Google it.” Here’s hoping the same happens for the DOL’s electronic disclosure guidance.

Could’ve, would’ve. What should a fiduciary do? Fourth Circuit decision could spell more uncertainty for retirement plan fiduciaries.

Posted in Benefits Issues Related to Mergers and Acquisitions, ERISA Fiduciary Compliance, ERISA Litigation, Retirement Plans

Coming on the heels of the U.S. Supreme Court’s Dudenhoeffer decision, which eliminated a pro-fiduciary presumption with respect to company stock holdings in qualified retirement plans, the 4th Circuit issued a decision last week that could cause even more unrest for plan fiduciaries. The case, Tatum v. RJR Pension Investment Committee, et al., represents a potential elevation of the standard “prudent fiduciary” rule as it had been widely understood it to govern ERISA retirement plans.

In short, the 4th Circuit in this case purports to require a fiduciary to determine whether a prudent fiduciary more likely than not would make the same decision, rather than simply asking whether a prudent fiduciary could make the questioned decision, which had been a generally accepted interpretation of ERISA’s fiduciary prudence rules, at least in some circuits. While this may seem like a merely semantic difference on first read, the impact is that the 4th Circuit requires not just an objective determination of whether a prudent fiduciary might have also made this decision, but a determination that in light of all circumstances known to the plan fiduciaries, the decision is one that more prudent fiduciaries than not would also make. Stated another way, the decision potentially requires a deeper analysis of a spectrum of prudent fiduciary actions, and could require a fiduciary to prove that it acted as a majority of prudent fiduciaries or the most prudent fiduciary would have acted – a standard that demands greater analysis, and certainly some speculation, from plan fiduciaries.

The decision is also notable because it is a “reverse stock drop” case in which the decision to remove a stock fund from a plan was alleged to be imprudent when the stock price subsequently surged. At its worst, the decision in Tatum, particularly as framed in the amicus brief submitted in support of the plan fiduciary, is significant because it has the potential to push plan sponsors and fiduciaries toward a Catch-22 position when it comes to taking action on retaining or eliminating company stock funds.

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The Obamacare see-saw — an opposing decision on subsidies

Posted in Health Care Reform

Some days are just more fun that others!

Just hours after the D.C. Circuit Court of Appeals issued its opinion in Halbig v. Burwell, which held that tax subsidies made available under the Affordable Care Act (“ACA”) to lower income individuals to help defray the cost of health care coverage may not be extended to individuals who reside in states that have elected not to establish their own health care exchanges, the 4th Circuit Court of Appeals today issued a unanimous decision today in King v. Burwell that upholds entitlement to tax subsidies available under the ACA for all eligible lower income individuals—whether or not they reside in a state that has established its own health care exchanges under the ACA (see http://www.ca4.uscourts.gov/Opinions/Published/141158.P.pdf). As in Halbig, the plaintiffs in King argued that Congress intended that the subsidies only be available in states that set up their own exchanges.  In essence, the plaintiffs were challenging the interpretation of the ACA made by the Internal Revenue Service (the “IRS”) that authorized the IRS to grant subsidies to individuals who purchase health care coverage both through state-sponsored exchanges and through the federally-run exchange.  Like the plaintiffs in Halbig, the plaintiffs in King argued that the IRS’s interpretation was contrary to the language in the ACA. The Fourth Circuit panel viewed the issue quite differently, and upheld the system of federal subsidies now available under the ACA.

In affirming the decision of the District Court judge in King, the panel acknowledged that the language in the ACA on this question was ambiguous. The panel decided it was appropriate to extend deference to the interpretation of the IRS, and thus upheld the interpretation that subsidies were available no matter whether a state had established its own exchange.

We are early in this game, but with today’s dueling decisions coming down on opposite sides of this issue, one has to assume that it is increasingly likely (perhaps virtually certain) that this issue is headed to the United States Supreme Court for resolution. Here we go again.

Obamacare takes an unexpected hit!

Posted in Health Care Reform

A federal Court of Appeals panel in Washington, D.C. today released a decision that, if upheld, would strike down one of the main pillars of the Affordable Care Act (“ACA”) and in the minds of many observers lead to unpredictable consequences. In a 2-1 decision in Halbig v. Burwell, the three-judge federal appeals panel reversed a decision by a lower District Court judge and held that tax subsidies made available under the ACA (often referred to as Obamacare, with or without derision) to lower income individuals–generally individuals making less than $46,075 annually–to help defray the cost of health care coverage may not be extended to such individuals who reside in states that have elected not to establish their own health care exchanges under the ACA.  The plaintiffs in the case argued that Congress intended that the subsidies only be available in states that set up their own exchanges. This panel embraced that argument (although this decision may find its way to the United States Supreme Court).  Until now, the court decisions on this issue have favored the federal government, so this decision properly can be characterized as at least a mild surprise.

If this decision stands, a large number of individuals could be affected. Twenty-seven states (most of which are controlled by Republicans) opted not to create their own exchanges. Nine other states essentially have elected to partner with the federal government, and so presumably they too would be affected by today’s decision. Only 14 states (plus Washington, D.C.) are sponsoring their own exchanges, and thus would be unaffected.

The subsidies available under the ACA can be crucial to ensure affordable coverage. According to a recent report issued by the Department of Health and Human Service, individuals who purchased plans with subsidies have a net premium cost that is on average 76 percent less than the full premium, which reduces their average premium from $346 to $82 per month. These individuals would be confronted with a significant increase in the cost of coverage. It is worth noting that this decision does not affect the obligation imposed under the ACA on these individuals to purchase coverage or face a penalty (although the option to obtain coverage may become less appealing for individuals, many of whom likely would be younger, who think they are healthy and thus perceive themselves as less in need of coverage). Approximately 5.4 million individuals signed up for coverage on the federally-run exchange early this year, and approximately 87 percent of those individuals are expected to receive subsidies. The system created by the ACA, including cost control initiatives, could face considerable pressure if as a result of this decision a high percentage of covered individuals are older and sicker.  The stakes are high.

While Congress could fix this problem legislatively, any thoughts of congressional action seem fanciful. Once again, this issue will have to play out in the courts, and we all get to watch.

ESOP boundaries: plan design versus fiduciary function

Posted in ESOPs

Greeting from Northeast Ohio. We have LeBron James coming home, the Republican National Convention, and something almost as exciting: thoughts about ESOPs!

As I mentioned in a prior blog, in Coulter v. Morgan Stanley & Co. the Second Circuit held that the decision to contribute employer stock rather than cash to a benefit plan was a settlor function, not a fiduciary function. This settlor/fiduciary distinction is critical to the foundation of ERISA and the future of employer-sponsored plans.

The United States Supreme Court’s Dudenhoeffer decision shortly after that surprised me because the Supreme Court has repeatedly made this point about the distinction between settlor and fiduciary functions. As explained in more detail in a prior blog, it seems like the decision to establish an ESOP to invest primarily in employer securities is a settlor function: plan design. But the Court treated the investment in employer securities as a fiduciary function.

ERISA fiduciary functions are important, in the right context. But when we fail to establish boundaries between settlor and fiduciary functions, we create untenable situations fraught with conflicts of interest. How can I design a plan to be invested primarily in employer securities if I also have to consider every day whether to blow it up? Did Congress really intend for an ESOP to be just another investment option, or was it intending to make an ESOP a matter of plan design?

Congress, there are a lot of employee-owned businesses out there and we need some help on this one. We just need a few words to clarify that holding employer stock in an ESOP is a settlor function: plan design. Yes, this would kill off a lot of litigation, which means it is probably not in my own best interests to advocate for this. But it would allow businesses and their employees to get back to work. Privately held companies could keep giving their employees ownership without worrying every day about whether they have to sell themselves and watch their folks get laid off in the process. Publicly held companies could stop worrying about whether they have to panic the market and drive down stock prices by selling off their own stock. And an employee of a publicly held employer could make her own decisions about whether or not to invest in her employer’s stock. It almost seems too easy.