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The Elusive Search: Considerations for Locating Missing Retirement Plan Participants (PDF)
"[R]ecent government focus and audit activity on the failure of retirement plans to make required distributions such as RMDs increases the risk of IRS penalties and excise taxes, and of claims that a breach of fiduciary duty may have occurred.... [P]lan administrators should take a fresh look at the processes they have in place for locating missing or nonresponsive plan participants." (Isler Dare)

Eye-Opening Facts About Benefits and Employee Retention
"47% of your employees will look for another position in the next 12 months.... [H]ow many people would have stayed in their current role if they understood their current benefits and what their total compensation truly was? ... 51% of employers say that using benefits to retain employees will become even more important in the next 3 to 5 years.... 75% of employees reported to be more likely to stay with an employer based on their benefit program[.]" (Hodges-Mace)

Priorities for Retirement Plan Sponsors: Plugging Leakage, Enabling Auto-Portability
"[T]he process of rolling a 401(k) savings account from a former-employer plan into an active account in a current-employer plan took more than two months to complete for 27% of participants.... [On] average, participants expect a roll-in to require them to spend 19 hours of personal time[.]" (Employee Benefit News)

Benefits Claim of Employee Who Claimed Prior Misclassification Was Preempted by ERISA
"Granting dismissal of an employee's (who was a former independent contractor) claim that his prior misclassification resulted in denial of the value of the benefits plan he would have received had he been properly classified, the federal district court in Massachusetts found that this portion of his claim was preempted by ERISA. The state law causes of action under the Massachusetts independent contractor law 'related to' the employee benefit plans covered by ERISA, concluded the court[.]" [Lavery v. Restoration Hardware, Inc., No. 17-10856 (D. Mass. Mar. 28, 2018)] (Wolters Kluwer Law & Business)

Report of Employee Plans Compliance Unit (EPCU): Completed Project -- Discontinuance of Contributions
"The responses indicated about 10% of plan sponsors had a complete discontinuance of contributions. These sponsors used [the] self-correction (SCP) and voluntary correction (VCP) programs to correct this error and make the affected participants 100% vested in their accounts.... [S]ome sponsors made errors in completing their Form 5500 series return because they did not understand the instructions for reporting terminated participants." (Internal Revenue Service [IRS])

2018 Expanded Reporting and Disclosure Requirements Calendar for Single Employer Pension Plans Under ERISA (PDF)
16-page Reporting and Disclosure Requirements Calendar provides who, what, when and where reporting and disclosure information for single-employer pension plans under ERISA. (Willis Towers Watson)

Keep Track of 401(k) Participants So They Don't Go Missing
"As records grow stale quickly, implement a periodic program to update mailing addresses. Before annual statements are sent out, for example, do an address scrub of all participants to get the best address.... Before required planned distributions, conduct a rigorous search. For instance, contact participants turning 70 this year, because starting at age 70 and a half, 401(k) funds must be paid out through required minimum distributions." (Society for Human Resource Management [SHRM])

Reporting Delinquent Contribution of Elective Deferrals
"[T]here are two different ways to compute the late deferrals to report as prohibited transactions, depending on whether you are completing the Form 5330 (Return of Excise Taxes Related to Employee Benefit Plans) or answering the questions on Form 5500, Schedule H, and its related supplementary schedule.... Form 5330 Purposes: Plan sponsors report only the interest on late deferrals for purposes of considering the amount of the prohibited transaction subject to excise taxes. [Form 5500, Schedule H:] Plan sponsors report the entire deferral amount that was deposited late as the prohibited transaction." (Belfint Lyons Shuman)

DB Termination Investment Success
"Understanding the precise nature of plan liabilities is critical for sponsors looking to stick the landing at plan termination.... [S]tumbles at the last moment may introduce significant cost, risk and frustration regardless of how effectively an LDI strategy has been executed up to that point.... Knowing when and how much to pull out of long bond strategies is an important consideration for those looking to minimize end game risk and stick the landing on DB plan terminations." (The Principal Blog)

Improve 401(k)/403(b) Participant Education Efforts
"Developing an effective educational program starts with an assessment of current investment behavior in the plan and asking employees about their financial concerns.... [A]im to use customized topics for different segments of the workforce instead of issuing broad messages to everyone.... [P]articipant education efforts are not a one-and-done effort. Programs in place for many years tend to be more successful." (PlanPILOT)

[Guidance Overview] IRS Updates Substantiation Procedures for Hardship Distributions
"Recently, the IRS updated the Internal Revenue Manual to incorporate the principles from the 2017 Memorandum [and] issued additional sub-regulatory guidance to plan sponsors that formalizes the requirements imposed on plan sponsors for substantiating hardship distributions.... The primary takeaway for plan sponsors is that failing to maintain the required records is a qualification failure that should be corrected using the Employee Plans Compliance Resolution System (EPCRS)." (Kilpatrick Townsend)

Advisory Council on Employee Welfare and Pension Benefits Provides Report on Plan Notices and Disclosures
"[T]he Council noted that there was generally consistent agreement among the witnesses that '...the goal of providing disclosures that are understood and utilized by participants has not been fully achieved by current mandatory disclosures.... [T]he overwhelming number and content of the disclosures being provided defeat the stated purpose.' ... [T]he Council recommended simplification and streamlining the communications.... The recommendations were accompanied by sample disclosures for the DOL's consideration[.]" (Masuda Funai)

IRS Requests Input on Possible Expansion of Determination Letter Program in 2019
"The Treasury and IRS have indicated that they will issue guidance if they identify any additional types of plans that may request a determination letter during 2019. However, they reserve the right not to expand the program at all, given the still limited IRS resources and the focus on tax reform[.]" (Groom Law Group)

[Guidance Overview] Ignore Those Form 5500 Instructions: 403(b) Plans Do Not Use Form 5330 for Late Deposits
"Though late deferrals to an ERISA 403(b) plan do need to be reported under the Compliance portion of the Form 5500 Schedule H or Schedule I, Form 5330 cannot be filed-in spite of the instructions in the Form 5500 instructions.... But there is no statutory requirement that you report it other than on the Form 5500 or mandatorily pay a penalty.... [T]he non-ERISA 403(b) plan is never subject to either the ERISA prohibited transaction rules or the 4975 tax. HOWEVER, timely deposit is a condition of 403(b) status ... Identifying those 'late' deposits can be a challenge." (Business of Benefits)

IRS Pressed on VCP Fee Changes at Hearing by House Small Business Subcommittee
"Sunita Lough, Commissioner of the IRS's Tax Exempt/Government Entities (TEGE) division ... provided testimony to a skeptical subcommittee to explain her rationale behind the changes.... Lough admitted that the IRS did not study how an increase in VCP user fees would affect small businesses' willingness to adopt and/or maintain retirement plans. Instead, the IRS's sole focus was on calculating the average time its employees spent on processing applications approving retirement plan corrections." (National Association of Plan Advisors [NAPA])

Defined Contribution Consulting Support and Trends Survey
24 pages. "[This] 2018 survey captures data, trends and opinions from 77 consulting firms across the U.S.... These firms advise over $4.4 trillion in US DC assets, accounting for almost 60% of all US DC assets ... Four out of five firms are willing to serve in some fiduciary capacity.... [T]op characteristics preferred [in a retirement income investment are] Liquidity (89%), Inflation protection (86%), and No new fiduciary risk (78%) ... The majority specify a minimum yield of 4% or 5% with a monthly payout.... Two-thirds (67%) of DC revenues are derived from fixed dollar arrangements, while 32% are sourced from basis point arrangements." (PIMCO)

PBGC Proposes Conforming Changes to Guaranteed Benefits and Asset Allocation Regs Concerning Owner-Participants
"The proposed regulations would amend the PBGC's benefit payment regulation by replacing the guarantee limitations applicable to substantial owners with a new limitation applicable to majority owners. In addition, the proposed regulations would amend the PBGC's asset allocation regulation by prioritizing funding of all other benefits in priority category 4 ahead of those benefits that would be guaranteed but for the new, owner-participant limitation." (Wolters Kluwer Law & Business)

IRS Requests Comments on Expanding Favorable Determination Letter Program
"[T]he IRS is interested in public input on circumstances it should consider in its decision to accept applications for favorable determination involving amended plans, or types of plan amendments, during calendar year 2019. Currently, the IRS only accepts applications for rulings on initial plan qualification or qualification on termination." (Morgan Lewis)

Tax Reform, Federal Budget Agreement and Employee Benefits: The Tinkering Trend Continues
"The only action required by employers to comply with the new rule is to make sure that participants are properly notified of the new rule when the loan offset occurs ... [E]mployers who allow their former employees to continue to repay loans after their employment terminates may now want to revise their plans to require immediate repayment.... As a result of the temporary reduction in federal income tax rates, all sponsors of 401(k) or 403(b) plans should consider allowing Roth deferrals to be made under their plans, if they do not already." (Miller Johnson)

[Official Guidance] PBGC Announces Changes to Standard and Distress Terminations Forms and Instructions
"OMB has approved minor revisions to the standard and distress termination forms and instructions. Key changes include a new option for submitting these filings by email and the ability to request a pre-filing consultation to determine if a distress filing application is warranted." (Pension Benefit Guaranty Corporation [PBGC])

TPA Due Diligence Requires Weighing More Than Fees
"TPAs who fully disclose their fee schedules can receive revenue sharing, but the revenue sharing is used to offset the fees. Any and all extra revenue sharing is allocated to the participants.... TPAs are ... split into two camps related to their pricing/revenue models; those that strictly use a fee schedule and will not accept a penny more and those that have uncapped revenue via revenue sharing agreements and/or asset-based fees.... The following questions should give you a clear understanding of breadth and quality of services." (Employee Benefit News)

[Official Guidance] Text of IRS Notice 2018-34: Weighted Average Interest Rates, Yield Curves, and Segment Rates Applicable for April 2018 (PDF)
"This notice provides guidance on the corporate bond monthly yield curve, the corresponding spot segment rates used under Section 417(e)(3), and the 24-month average segment rates under Section 430(h)(2) ... In addition, this notice provides guidance as to the interest rate on 30-year Treasury securities under Section 417(e)(3)(A)(ii)(II) as in effect for plan years beginning before 2008 and the 30-year Treasury weighted average rate under Section 431(c)(6)(E)(ii)(I)." (Internal Revenue Service [IRS])

[Guidance Overview] Budget Act Brings Much Needed Hardship Relief (PDF)
"The Bipartisan Budget Act of 2018 brings important relief for plan sponsors and recordkeepers for tax-qualified retirement plans. This relief includes [1] relaxed hardship withdrawal rules, [2] expanded rollover for improper federal tax levies, [3] California wildfire relief for plan distributions, and [4] a special Congressional committee to address the major funding concerns for multiemployer plans." (Groom Law Group, via TAXES the Tax Magazine)

Protect Your Qualified Plan from RMD Failures
"To help protect a plan from RMD failures and the administrative cost and hassle that follows, a plan sponsor should adopt an internal system to [1] monitor ages of participants (including former employee participants), [2] contact those who are approaching Normal Retirement Age (and at the latest age 70-1/2) to start the benefit payment process, and [3] document efforts made to locate missing participants, following the IRS guidelines." (Watkins Ross)

Text of New Jersey Proposed Legislation to Require Teacher Retirement Plan Fee Disclosure
"This bill requires persons who administer certain supplemental annuity retirement plans for teachers, offered by a local school board, to disclose to each plan participant the [1] fee ratio and return, net of fees, for each investment under the plan and [2] fees paid to any person who, for compensation, provides investment advice to participants directly or through publications or writings. The plan administrator must make the disclosures upon a participant's enrollment and annually thereafter." (218th Legislature, State of New Jersey)

[Opinion] American Retirement Association Announces E-Delivery Initiative
"The ARA's proposal would essentially flip the current orientation of the [DOL's] regulations, which emphasize providing paper disclosures ... to plan participants but include a safe harbor permitting electronic delivery to certain types of participants with online access.... Late last year, bipartisan legislation that would allow for e-delivery of pension and retirement plan information was introduced in the U.S. House of Representatives by Rep. Jared Polis (D-CO) and Rep. Phil Roe (R-TN), along with 26 cosponsors." (National Association of Plan Advisors [NAPA])

What Keeps a Head of Cybersecurity Up at Night?
"Rachel Wilson, head of cybersecurity for Morgan Stanley's Wealth Management unit ... identified advisors as 'the weakest link' in the financial services chain ... Wilson emphasized the importance of keeping all mission-critical software up to date by installing vendors' updates -- 'patches' -- immediately.... Phishing emails ... are now informed by hacked personal information, ... making them more authentic and much more different to identify as fraudulent.... Call centers have also emerged as a top target of cybersecurity fraud[.]" (National Association of Plan Advisors [NAPA])

Financial Conflict of Interest in the Eighth Circuit: Trigger of a Less Deferential Standard of Review or Mere Factor in Determining Plan Administrator Abuse of Discretion?
"The [Eighth Circuit] noted that ... a financial conflict of interest is merely a factor that a court should consider in determining whether a plan administrator has abused its discretion -- not a basis for applying a less deferential standard of review. The Court explained that -- although apparently substantially similar -- a less deferential standard of review versus consideration of financial conflict of interest in conjunction with an abuse of discretion standard of review were distinct concepts." [Boyd v. ConAgra Foods, Inc., No. 16-1763 (8th Cir. Jan. 5, 2018)] (Jackson Lewis P.C.)

Signs of a Successful 401(k) Plan
"[1] Reasonable cost ... [2] A lot of employees have account balances ... [3] A high percentage of employees contribute ... [4] New employees roll money into the plan, departing employees leave their balances ... [5] Employees understand the plan ... [6] The fund lineup has a home for everyone ... [7] The leaders in your company talk about your plan." (Lawton Retirement Plan Consultants)

[Official Guidance] Text of PBGC Interest Rate Update for Benefits Payable in Terminated Single-Employer Plans, May 2018
"The May 2018 interest assumptions under the benefit payments regulation will be 1.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for April 2018, these assumptions are unchanged." (Pension Benefit Guaranty Corporation [PBGC])

Missing Retirement Plan Participants and Employer Risk
"[T]he plan fiduciary needs to understand how ... uncashed check amounts will be tracked and/or managed.... [T]he amounts related to these uncashed check can be considered 'plan assets,' and thus still subject to trust and fiduciary obligations and in many cases may continue to earn income ('float') for the service provider, further complicating the fiduciary considerations for the plan sponsor." (Stevens & Lee)

Strategies to Help Your Executives Maximize Their 401(k) Contributions
"Safe Harbor is an easy way of getting around most non-discrimination testing. It's also rather expensive.... Getting more employees to participate in the 401(k) can really move the needle on contribution limits for your HCEs.... higher default savings rates have little-to-no effect on employee participation. Setting a smarter default is an easy way to double your employee savings rates with little-to-no loss in participation." (ForUsAll)

Blockchain Technology and Its Impact on Employee Benefit Plans
"[Blockchain technology] will have the capability to transform the overall administration and recordkeeping, link payroll with participant accounts and investment elections and allow participants to more easily transfer money from one fund to another. One specific opportunity is the use of smart contracts for pension plans.... Blockchain would make it easier for all parties to review and approve documents." (Schneider Downs)

What to Do with Missing Participants and Required Minimum Distributions
"[T]he IRS website states that employers and plan administrators of ongoing plans may want to consider periodically using one or more of the search methods described in [DOL FAB 2014-01], as this can provide evidence of making a reasonable effort to locate RMD-eligible missing participants." (PenChecks)

Retirement's Future Could Rest with Digital Tools, Behavioral Economics
"[W]hen a chatbot and text messages, as well as targeted e-mails, are combined with the principles of behavioral economics -- specifically, nudging people into certain actions -- the effects on retirement savings can be substantial." (Voya)

Tips for Handling Combined DB/DC Plan Testing
"All plans must have the same plan year. Plans being aggregated must have the same start and end date. Benefits rights and features may not be available on a discriminatory basis.... The only qualified plans that may be aggregated to comply with Internal Revenue Code Section 401(a)(4) are model SEPs and SIMPLE plans, and they must be the employer's only active plan ... To demonstrate comparability ... all the participants must have an EBAR at least equal to the DB top heavy minimum EBAR.... [E]ach type of plan must comply with Code Section 404 separately." (American Society of Pension Professionals & Actuaries [ASPPA])

Fifth Circuit Joins Sister Circuits by Overruling Default Deferential Standard of Review
"The Fifth Circuit provided several grounds for its decision to overrule [its quarter century-old holding in Pierre v. Connecticut General Life Insurance Company], including the fact that no other circuit agreed with its interpretation of Firestone. It also rejected as misplaced Pierre's reliance on trust law and its analogies to the deference afforded to agency decisions and the factual findings of district courts to support its interpretation of Firestone." [Ariana M. v. Humana Health Plan of Texas, Inc., No. 16-20174 (5th Cir. Mar. 1, 2018)] (Robinson & Cole LLP)

Defusing the Pension-Savings Time Bomb (PDF)
"The current environment of low interest rates and investment returns, sluggish wage growth and inadequate private savings is creating a retirement-funding problem.... [S]trategies for employers ... can include: [1] Making lump-sum offers to future retirees.... 43 percent of U.S. firms have offered buyouts to future plan beneficiaries. [2] Shifting obligations for existing retiree groups, or entire plans, to insurance companies." (Aon)

Two Ways the New DOL Disability Claims Regs Will Change Litigation
"The new regulations allow for the court to substitute de novo review in cases where an insurer failed to strictly adhere to the regulations.... There are several strategic advantages to agreeing to de novo review, depending on your administrative file." (Lane Powell PC)

Court Rejects 'Segal Blend' for Withdrawal Liability Calculations
"[T]he court found that the plan's Trustees and Enrolled Actuary do not have complete discretion in their choice of an appropriate discount rate in determining withdrawal liability for employers that significantly reduce or entirely cease contributing to a multiemployer plan.... [This article will] discuss why ... the judge ruled on this issue the way he did, [and] what this could mean for other employers withdrawing from multiemployer funds[.]" [The New York Times Co. v. Newspapers & Mail Deliverers'-Publishers' Pension Fund, No. 17-6178 (S.D.N.Y. Mar. 26, 2018)] (October Three Consulting)

Yours, Mine, Ours: Are the Individuals Working for You Your Employees?
"CalPERS continues to investigate and challenge a number of 'staff leasing,' management service contracts, and JPAs established to provide management personnel to local government on an independent contractor basis.... [O]nly the common-law employer counts for CalPERS and other employee benefit purposes. Therefore, such 'leasing' agencies, if not the common-law employer, cannot be the CalPERS employer." (Best Best & Krieger LLP)

New Integration Software Melds Clients with Advisers
"[Human capital management (HCM)] and payroll companies struggle ... with handling all the complexities of employee benefits information.... [T]his type of complexity requires a robust benefits system that can be readily reconfigured -- not an all-purpose HCM system that wasn't specifically designed for benefits administration.... [W]eb-based APIs can make such a system far more flexible.... [T]he next logical step will be to simplify and standardize API formats[.]" (Employee Benefit Adviser)

Seventh Circuit Holds That ERISA Does Not Preempt Illinois Slayer Statute
"While this decision provides meaningful guidance on the applicability of slayer statutes to retirement benefits, it is currently only binding on jurisdictions residing in the Seventh Circuit ... It remains to be seen whether the holding will become binding on other jurisdictions as well." [Laborers' Pension Fund v. Miscevic, No. 17-2022 (7th Cir. Jan. 29, 2018)] (Holland & Knight)

Locating Missing Participants Under the PBGC's Expanded Program for Terminated Plans
"The revised program provides a helpful alternative for plan administrators of terminating defined contribution plans ... [A]dministrators of ongoing plans will need to continue to find other ways to address the problem of missing participants and beneficiaries." (McDermott Will & Emery)

[Official Guidance] Text of IRS Notice 2018-24: Request for Comments on Scope of Determination Letter Program for Individually Designed Plans During Calendar Year 2019 (PDF)
"This notice requests comments on the potential expansion of the scope of the determination letter program for individually designed plans during the 2019 calendar year, beyond provision of determination letters for initial qualification and qualification upon plan termination. In reviewing comments submitted in response to this notice, the [Treasury Department] and the [IRS] will consider the factors regarding the scope of the determination letter program set forth in section 4.03(3) of Revenue Procedure 2016-37.... The Treasury Department and the IRS will issue guidance if they identify any additional types of plans for which plan sponsors may request determination letters during the 2019 calendar year." (Internal Revenue Service [IRS])

Rethinking the Digital Experience to Drive Plan Participation
"[A] full-featured, responsive website for your plan likely will engage and excite your employees, and thus promote participation rates. Move forward from archaic paper forms and encourage the use of technology for efficiency and safety to drive plan participation.... A well-designed user experience empowers plan participants to better understand their options, actively direct their funds and, ultimately, save more. Here are some insights ... on how to improve the user experience in retirement account web portals." (PlanPILOT)

Tax Act Compels Fresh Review of 'Uncomfortable' Fiduciary Obligations of Participant Loans
"These changes should cause plan sponsors and recordkeepers to consider new choices about their handling of loan defaults, something they haven't had to do in nearly 18 years. This matters because changing a plan's loan rules is not a minor technical act. Loans are investments subject to the same ERISA prudence rules as any other plan investment, and changes to loan procedures impacts the investment." (Business of Benefits)

What Happens After Breach of Fiduciary Duty Claims Stemming from Denials of Benefits Survive a Motion to Dismiss? (PDF)
"Following the U.S. Supreme Court's decision in CIGNA Corp. v. Amara, plaintiffs have argued, with some success, that ERISA breach of fiduciary duty claims under ERISA Sections 502(a)(2) and (a)(3) may proceed alongside claims for benefits under ERISA Section 502(a)(1)(B) that seek the same relief.... One recent decision ... provides useful insight on how courts approach residual breach of fiduciary duty claims ... after dismissing a claim for benefits ... It demonstrates that, even where a court permits a breach of fiduciary duty claim to outlive a claim for benefits, plaintiffs still may have difficulty establishing an actionable fiduciary breach in the typical claim for benefits context." [O'Rourke v. Northern California Electrical Workers Pension Plan, No. 16-2007, (N.D. Cal. Nov. 2, 2017)] (Jenner & Block, via Employee Relations Law Journal)

PBGC Issues Guidance on Reviews of Multiemployer Plans' Proposed Alternative Terms and Conditions to Satisfy Withdrawal Liability
"The Pension Benefit Guaranty Corporation (PBGC) has issued guidance for multiemployer plans that request review of proposed alternative terms and conditions for satisfying employer withdrawal liability under [ERISA]. The guidance sheds light on information the PBGC finds helpful and the factors it considers in its reviews." (Thomson Reuters Practical Law)

Key Topics to Include in Any ERISA Fiduciary Training Program
"[1] Who is an ERISA fiduciary? ... [2] Settlor functions versus fiduciary functions ... [3] Identifying the ERISA plans of the employer ... [4] Description of ERISA fiduciary duties ... [5] Self-dealing and conflicts of interest ... [6] Prohibited transactions and exemptions ... [7] Limited liability for participant-directed investments ... [8] Favorable standard of review ... [9] Governance ... [10] Fiduciary insurance." (Thompson Coburn)

[Opinion] ARA Letter to IRS Recommending Expansion of Self Correction Program under EPCRS (PDF)
"ARA recommends the Service adopt the following modifications to EPCRS: ... [1] Extending the period for self-correction of significant errors and permitting self-correction of missed deferral opportunities, regardless of when the error occurred; [2] Adding new earnings adjustment calculation methods to the existing safe harbor methods in EPCRS; [3] Clarifying the definition of an insignificant operational failure; [4] Providing safe harbor corrections related to overpayments and earnings adjustment calculations in defined benefit plans; [5] Expand[ing] the types of errors that may be corrected through SCP[.]" (American Retirement Association [ARA])

Paying 401(k) Fees from Plan Assets
"Settlor expenses ... are considered to benefit the 401(k) plan sponsor in more than an incidental way....[and] must be paid by the plan sponsor.... When 401(k) plan participants are considered to derive some benefit from a settlor expense, the sponsor can charge that portion to the plan. Further, plan expenses necessary to implement a settlor decision can be paid from plan assets as an administrative expense." (Employee Fiduciary)

[Guidance Overview] 2018 Enrolled Actuaries Meeting 'Blue Book': Questions to the PBGC and Summary of Responses (PDF)
20 pages; Mar. 13, 2018. Topics include: [1] Premiums; [2] Standard Terminations;[3] Reportable Events; [4] ERISA Section 4010 Reporting; [5] ERISA Section 4044 Calculations. (Enrolled Actuaries Program Committee and Pension Benefit Guaranty Corporation [PBGC])

DOL Replaces Guidance on Employee Classification
"The 2014 guidance has been replaced by guidance from 2008. The 2008 guidance does not contain the statement that 'most workers are employees.' However, this guidance does include the same 'economic realities' test present in the 2014 guidance, under which determination of employee status is made by considering [specified] factors[.]" (QBI)

[Guidance Overview] New DOL Disability Claims Regs Now Effective
"[M]ost notable ... is the DOL's new 'deemed exhausted' rule, under which a claimant is deemed to have exhausted the administrative remedies available under a plan -- and is therefore permitted to proceed immediately to litigation -- if a plan fails to strictly adhere to any of the claims procedures[.]" (Robinson & Cole LLP)

Loosened Rules at Odds with Efforts to Cut Loans, Hardship Withdrawals
"2.3% of participants made hardship withdrawals in 2017. Over the same period, 10% of participants initiated loans, and 21% had loans outstanding ... While the implications of the new hardship withdrawal provisions are still being assessed by many plan sponsors, [some companies] are working in the meantime to ensure employees are making informed decisions about withdrawals and loans, and not jeopardizing their retirement nest eggs." (Pensions & Investments)

Dealing with the Missing Participant Problem (PDF)
"One out of every five (20%) job changer relocations results in a missing participant record. The average number of accounts still with a previous employer (stranded accounts) was 1.42 accounts per participant. Retired and unemployed participants had 1.24 and 1.25 accounts per participant, respectively. The probability of locating a missing participant with an active participant address record is 67%." (National Association of Plan Advisors [NAPA])

[Guidance Overview] February Federal Budget Deal Revisits Previously Proposed Changes to Qualified Retirement Plan Rules
"[S]ince both the plan loan and six month suspension are part of the IRS 'safe harbor,' deciding not to make theses change will impact hardship administration (e.g., the new relaxed IRS substantiation guidelines only applies to safe harbor hardship distributions).... Employers wishing to continue to rely on the safe harbors (as opposed to making individual hardship determinations) should plan to adopt these provisions." (Baker McKenzie)

Understanding and Evaluating Retirement Plan Fees
"The criteria for fee and performance reviews should be contained in the plan's investment policy statement ... Recordkeeping and administrative fees should be evaluated and compared to plans of similar size and type that are receiving analogous services.... Other service provider fees should be evaluated on an annual basis, including audit fees, legal fees and investment advisory and consulting fees." (Cammack Retirement Group)

[Guidance Overview] Expanded Disability Claims Procedure Rules Become Effective in Three Days
"Plan sponsors need to review their plans to determine whether such plans provide disability benefits and, if so, whether the rule applies. This review should encompass not only short- and long-term disability plans, but also ERISA-governed retirement, severance and 'top hat' plans that provide disability benefits.... [A]ppropriate steps should be taken to amend plan documents, prepare necessary participant communications and confirm proper administration of any disability claims filed on or after April 1." (McGuireWoods)