Approximately one-third of eligible workers do not participate in their employer-sponsored defined contribution plans, such as ERISA 403(b) and 401(k) plans. Research suggests that almost all of these workers would choose to remain participants if they were automatically enrolled. The increased savings would significantly improve their retirement security and may result in improved workplace satisfaction.
Some employers have adopted automatic enrollment plans and many more are interested, but the fact that they are potentially liable for investment losses that may occur in such plans has been a major deterrent to wider adoption of this plan design.
The Pension Protection Act (PPA) of 2006 removes several impediments from automatic enrollment plans. A key provision of the PPA is amending the Employee Retirement Income Security Act (ERISA) to provide a safe harbor for plan fiduciaries investing participant assets in certain types of default investment alternatives in the absence of participant investment direction.
ERISA provides relief from liability for investment outcomes to fiduciaries of individual account plans that allow participants to exercise control over the investment of assets in their plan accounts. The regulation deems a participant to have exercised control over assets in his or her account if, in the absence of investment direction from the participant, the plan fiduciary invests the assets in a qualified default investment alternative (QDIA). The following conditions must be met for fiduciary relief:
1. Assets must be invested in a QDIA. A QDIA:
2. Participants and beneficiaries must have been given an opportunity to provide investment direction, but failed to do so.
3. Participants must receive advanced notice of the potential investment in a QDIA at least 30 days in advance of the date of plan eligibility of the participant, at least 30 days in advance of any first investment in a QDIA on behalf of the participant, or on or before the date of plan eligibility of the participant, if the participant is given the opportunity to make a permissible withdrawal as allowed under the tax code. Advance and annual notices must contain the following descriptions and information:
4. Any material, such as investment prospectuses and other notices, provided to the plan by the QDIA must be furnished to participants and beneficiaries.
5. Participants and beneficiaries must have the opportunity to direct investments out of a QDIA with the same frequency available for other plan investments but no less frequently than quarterly, without financial penalty. Restrictions, fees or expenses are precluded on transfers during the first 90 days of investment in a QDIA.
6. The plan must offer a “broad range of investment alternatives” as defined in the Department of Labor’s (DOL) regulation under sec. 404(c) of ERISA.
7. Plan fiduciaries would not be relieved of liability for the prudent selection and monitoring of a QDIA.
Plan sponsors should review their policies and procedures and make sure that they meet the above requirements, make the necessary amendments to plan documents and determine what, if any, new notices need to be drafted.
For more information see www.dol.gov/ebsa/regs/fab2008-3.html (the DOL’s Field Assistance Bulletin on QDIAs). If you would like to talk to a dedicated retirement plan advisor, please get in touch by calling (800) 388-1963 or via e-mail at hbs@hanys.org.
Some employers have adopted automatic enrollment plans and many more are interested, but the fact that they are potentially liable for investment losses that may occur in such plans has been a major deterrent to wider adoption of this plan design.
The Pension Protection Act (PPA) of 2006 removes several impediments from automatic enrollment plans. A key provision of the PPA is amending the Employee Retirement Income Security Act (ERISA) to provide a safe harbor for plan fiduciaries investing participant assets in certain types of default investment alternatives in the absence of participant investment direction.
Conditions for Relief from Liability
ERISA provides relief from liability for investment outcomes to fiduciaries of individual account plans that allow participants to exercise control over the investment of assets in their plan accounts. The regulation deems a participant to have exercised control over assets in his or her account if, in the absence of investment direction from the participant, the plan fiduciary invests the assets in a qualified default investment alternative (QDIA). The following conditions must be met for fiduciary relief:
1. Assets must be invested in a QDIA. A QDIA:
- Consists of one of the following types of investment products: Lifestyle or Target-Retirement Date Fund, Balanced Fund, Professionally Managed Account, Capital Preservation Product (only for the first 120 days after a participant’s first elective contribution to the plan) or Intermediate Investment Grade Bond Fund (only for assets that have been invested in such fund prior to Dec. 24, 2007)
- Generally must not hold or allow the acquisition of employer securities (there are exceptions to this rule).
- Must be either managed by an investment manager or an investment company registered under the Investment Company Act of 1940.
- Cannot impose restrictions, fees or expenses on the transfer of assets out of the QDIA within the first 90 days of the investment, and after the 90 day period, restrictions, fees and expenses that are applied to other participants that elect to invest in a QDIA may be applied.
- Must be diversified so as to minimize the risk of large losses.
2. Participants and beneficiaries must have been given an opportunity to provide investment direction, but failed to do so.
3. Participants must receive advanced notice of the potential investment in a QDIA at least 30 days in advance of the date of plan eligibility of the participant, at least 30 days in advance of any first investment in a QDIA on behalf of the participant, or on or before the date of plan eligibility of the participant, if the participant is given the opportunity to make a permissible withdrawal as allowed under the tax code. Advance and annual notices must contain the following descriptions and information:
- Under what circumstances participant’s assets may be invested in a QDIA and, if applicable, under what circumstances elective contributions might be made on behalf of the participant and their right to elect to not have such contributions made.
- QDIA description including objectives, risk and return characteristics, fees and expenses.
- Participant’s right to redirect investment of the assets to another QDIA under the plan including restrictions, fees and expenses that may be associated with the transfer.
- An explanation of where participants can obtain investment information regarding available investment alternatives.
4. Any material, such as investment prospectuses and other notices, provided to the plan by the QDIA must be furnished to participants and beneficiaries.
5. Participants and beneficiaries must have the opportunity to direct investments out of a QDIA with the same frequency available for other plan investments but no less frequently than quarterly, without financial penalty. Restrictions, fees or expenses are precluded on transfers during the first 90 days of investment in a QDIA.
6. The plan must offer a “broad range of investment alternatives” as defined in the Department of Labor’s (DOL) regulation under sec. 404(c) of ERISA.
7. Plan fiduciaries would not be relieved of liability for the prudent selection and monitoring of a QDIA.
Plan sponsors should review their policies and procedures and make sure that they meet the above requirements, make the necessary amendments to plan documents and determine what, if any, new notices need to be drafted.
For more information see www.dol.gov/ebsa/regs/fab2008-3.html (the DOL’s Field Assistance Bulletin on QDIAs). If you would like to talk to a dedicated retirement plan advisor, please get in touch by calling (800) 388-1963 or via e-mail at hbs@hanys.org.