Although retirement plans and schemes are generally jurisdiction specific creatures, the governance of the retirement plans and schemes of multinational companies is very much a global issue.  Retirement funds, whether defined contribution plans or defined benefit plans, are essentially large pots of money (frequently in the billions of dollars) located in jurisdictions around the world.  These arrangements tend to be heavily regulated and pose numerous risks to the sponsor, including legal and regulatory compliance gaps, participant lawsuits, government investigations, and embezzlement of trust funds.  Of further concern are plan funding obligations and material risk to the corporate balance sheet (e.g., the effect of unfunded defined benefit plan liabilities on financial statements and the management of plan assets and liability for possible losses.)  At the same time, the arrangements may be tied to various corporate/HR goals, with tensions between a company’s desire to harmonize global benefits and/or achieve cost control objectives and the reality of local labor markets and legal requirements.

Global and multinational employers may have a local committee or officer in each country responsible for that country’s retirement arrangements, but the degree to which such local personnel operate independently, and the amount of reporting to, and oversight by, a committee at the parent level varies.  Not infrequently, the allocation of responsibility between parent and subsidiary committees does not fully align with the goals and risk management objectives of the company as a whole.

We are finding that many employers are in the process of assessing (or reassessing) their governance and risk management structures for their retirement programs on a global basis.  Mayer Brown’s Global Guide to Retirement Plans & Schemes provides a brief overview of the laws relating to the regulation of retirement plans and schemes in 50 key countries.  The guide was launched in 2017 with the hope that it will be a valuable starting point for multinational and global employers that are developing or updating governance and risk management structures for their retirement programs.  While the guide is not a comprehensive discussion of the laws governing retirement programs in each applicable country, it summarizes the general contours of the country’s social security system and employer-sponsored broad-based plans/schemes, with an emphasis on those aspects of the regulatory structure that pose potentially significant liability/risk management issues for empl0yers.  We hope that our clients and friends will find the guide useful.

At the table in the kitchen, there were three bowls of porridge.  Goldilocks was hungry.  She tasted the porridge from the first bowl.

“This porridge is too hot!” she exclaimed.

So, she tasted the porridge from the second bowl.

“This porridge is too cold,” she said

So, she tasted the last bowl of porridge.

“Ahhh, this porridge is just right,” she said happily and she ate it all up.

 

Virtually all companies that offer participant-directed retirement plans permit their participants to elect an income-producing, low risk, liquid fund, such as a money market fund or a stable value fund. A stable value fund, as the name suggests, is a conservative investment option designed to provide stability, as opposed to growth.

Stable value funds have desirable features.  By combining bonds and an investment wrap, participants can achieve bond-like returns without the interest-rate volatility present in bond funds.  But those features do not eliminate the risk of losses, they just delay them. Indeed, a stable value fund with a longer duration is riskier than a fund with a shorter duration.

The stability-enhancing features of a stable value fund mean that, if a stable value fund invests in a bond that defaults, the value of the fund will not take an immediate tumble, but the loss will be amortized over a period of time.  Over the long run, the performance of a stable value fund approaches the performance of the underlying bond portfolio, minus the expenses of maintaining the wrap coverage and administering the fund.

There is, however, no typical stable value fund. According to How to Evaluate Stable Value Funds and Their Managers by Andrew Apostol, “[d]ue to the varying expectations of individual plan sponsors and the range of management techniques used by their stable value managers, there is not a single style or strategy that is common across all stable value funds.” For example, the plans for a Silicon Valley startup or a hedge fund will differ. Even if both aim for stability, the participants likely have different risk targets, which will lead to different markups across stable value funds.

Even though there is no typical stable value fund, there are three typical types of lawsuits filed against fiduciaries offering stable value funds. Fiduciaries have been sued for 1) offering a stable value fund that is too risky and 2) offering a stable value fund that is not risky enough. Only Goldilocks, it seems, could safely offer a stable value fund.

Considering the litigation risks for fiduciaries who do not set the stable value fund just right—a task that always looks easier in the hindsight of a lawsuit—a fiduciary may conclude the best option is not to offer a stable value fund at all. Yet fiduciaries have also been sued for 3) not offering a stable value fund. Let’s take a deeper dive into these three bears of a lawsuit. Continue Reading Stable Value Funds: A Financial Investment with Risky Litigation Consequences

After working to reconcile differences between the two Tax Cuts and Jobs Act bills, the Senate and House Conference Committee reached a tentative agreement on Wednesday, December 13. Although there is not yet a published version of the Conference Committee’s bill, both the Senate and House had proposed adding a new Section 4960 to the Internal Revenue Code (Code) which would, effective for taxable years beginning after December 31, 2017, impose an excise tax of 20% on certain compensation paid to a covered employee by a tax-exempt organization in excess of $1,000,000 and for certain excess parachute payments. The excise tax would be payable by the tax-exempt organization.  This post summarizes key provisions of the proposed excise tax provision.

General Rule:  Tax-exempt organizations will be required to pay a 20% excise tax equal to 20% of the sum of (i) remuneration paid in excess of $1,000,000 during a taxable year to a covered employee and (ii) any excess parachute payment paid to the employee by such organization during such year.  The proposed statutory text notes, though, in relevant part that any such amounts shall be considered “paid” for this purpose when there is no substantial risk of forfeiture. Continue Reading The Tax Cuts and Jobs Act-Understanding the Proposed Excise Tax On Tax-Exempt Organizations

This post has been updated to reflect subsequent changes made by the IRS, as further described in this post.

The Internal Revenue Service has released its annual cost-of-living adjustments applicable to employee benefit plans. A year-to-year comparison of limitations applicable to plan sponsors can be found here: Mayer Brown 2018 Annual Limitations Chart 2018 (updated to reflect changes described in this post).

Reflecting a slight uptick in inflation in the past year, several benefit plan limitation amounts will increase for 2018. Noteworthy changes for retirement plan participants include an increase in the elective deferral limitation for defined contribution plans from $18,000 to $18,500, which is the first such increase since 2015. The limit on compensation taken into account under qualified plans will rise from $270,000 to $275,000.

Health and welfare plan participants will also see some increases in the amounts contributable to health care flexible spending accounts and health savings accounts (although the latter increase comes at a price, namely, an increased minimum deductible for HSA-eligible high-deductible health plans). Small employers taking advantage of the fairly recent opportunity to provide Qualified Small Employer Health Reimbursement Arrangements (QSEHRAs) to eligible employees in 2018 can provide increased reimbursements of up to $10,250, up from $10,050, for family coverage. (QSEHRA maximums for self-only coverage will increase from $4,950 to $5,050.)

On November 16, 2017, Institutional Shareholder Services (ISS) published its updated proxy voting guidelines for the US, Canada, and Brazil effective for shareholder meetings that occur on or after February 1, 2018. In addition to many other changes, ISS addressed two issues that relate to compensation programs that should be considered by public company clients.

First, ISS added a problematic compensation practice related to non-employee director compensation. ISS notes that it will generally vote against the members of the board committee responsible for non-employee director compensation if there is a pattern of awarding excessive compensation to non-employee directors.  Although excessive is not defined, ISS notes that it has identified cases of “extreme outliers” of non-employee director compensation relative to peers and the broader market so it appears that peer data will be used as a justification for identifying excessive compensation.  Additionally, because a pattern of excessive compensation is the trigger for a negative vote (as opposed to a single instance), ISS will not consider non-employee director compensation for vote recommendations in 2018, but may take current compensation into account in the future if a pattern of excessive compensation is identified in consecutive years.

Second, ISS updated guidance regarding the responsiveness of the company’s board of directors to an advisory vote of less than 70% in favor of executive compensation. ISS will consider a failure to adequately respond to investors following a previous say-on-pay vote that received less than 70% support on a case-by-case basis when evaluating ballot items related to executive compensation.  Factors considered when evaluating the company’s response include:

  • Disclosure of engagement efforts with institutional investors (including the timing and frequency of engagements and whether independent directors participated);
  • Disclosure of specific concerns voiced by such investors that led to voting against the say-on-pay proposal;
  • Disclosure of specific actions taken by the company in response to such concerns; and
  • Disclosure of any other recent changes in the compensation program made by the company.

ISS notes that independent director participation in any engagement with shareholders is preferred as being more conducive to receiving candid shareholder feedback. ISS also notes that it wants a summary of the concerns raised to more effectively evaluate whether changes are responsive to the feedback and to evaluate not just whether changes were made but whether quality changes were made.

As we previously reported in our Legal Update, in April 2016 the U.S. Department of Labor (“DOL”) replaced its 1975 regulation that set the parameters for determining when a person should be treated as a fiduciary under ERISA when providing advice with respect to investment matters (the “Fiduciary Rule”).  The new definition treats persons who provide investment advice or recommendations for a fee or other compensation with respect to assets of a plan or IRA as fiduciaries in a much wider array of relationships than was true under the 1975 regulation. In connection with the publication of the new Fiduciary Rule, the DOL also published two new administrative class exemptions from the prohibited transaction provisions of ERISA and the Internal Revenue Code—the BIC Exemption and the Principal Transactions Exemption—as well as amendments to PTE 84-24, commonly relied upon for the sale of insurance contracts to ERISA plans.  As discussed in the Legal Update, just as plan fiduciaries geared up for these major changes, the DOL began to back peddle as a result of the change in administration and new leadership at the DOL. So where are we now? Continue Reading DOL Fiduciary Rule Update – Where Are We Now?

For an update on the status of the revised claims procedure regulations, see here.

The Department of Labor’s Employee Benefits Security Administration (EBSA) has announced, via final rule, that it is delaying the applicability of revised claims procedures that would have applied to disability benefit plans governed by ERISA.  The revised claims procedures, which are similar to those that apply to group health plans and include expanded disclosure and translation obligations, were originally scheduled to become effective as of January 1, 2018 and are now slated to take effect on April 1, 2018.  In the meantime, EBSA plans to complete its comment solicitation process, examine the information and data submitted, and take any appropriate next steps.

Continue Reading Disability Claims Procedure Regulations Delayed… For the Last Time?

A collective investment trust (“CIT”) is a longstanding vehicle used by banks and trust companies to commingle the assets of qualified retirement trusts for investment.  In recent years, CITs are enjoying a resurgence for defined contribution plans as an alternative to mutual funds in a 401(k) plan line up. The primary reason for the new popularity of CITs is that they often have a lower expense ratio than mutual funds as a result of being free from the extensive regulatory requirements imposed on mutual funds under the securities laws.  But there are many other differences between CITs and mutual funds that plan fiduciaries should understand when adding an investment option structured as a CIT to their 401(k) plan line up.  This blog provides a number of examples of issues that plan fiduciaries who are not familiar with CITs could miss. Continue Reading Collective Investment Trusts – What DC Plan Fiduciaries Should Know

During the two years following the SEC’s publication of final rules that require that companies satisfy the pay ratio disclosure requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act beginning in 2018 proxy statements, many public companies, hoping for a repeal or delay in the implementation of the rules, have waited to take the significant preparatory steps necessary for compliance.  As there has been no reprieve in the deadline — the pay ratio is still required to be disclosed in 2018 proxy statements — the time for procrastination has ended, and public company clients need to take immediate steps to ensure compliance in 2018.

Briefly, the pay ratio disclosure contained in Item 402(u) of Regulation S-K requires public companies to disclose:

  • The median of the annual total compensation of all employees of such public company other than the CEO;
  • The annual total compensation of the CEO; and
  • The ratio of those two amounts.

Continue Reading The Time for Procrastination is Over: The Pay Ratio Has Arrived

 

With all of the press about the new tax reform legislation and the proposed changes to the corporate tax rates, many companies might be considering strategies for accelerating deductions into earlier years to take advantage of those deductions in a year when the tax rates may be higher than in future years.  One strategy to consider is whether it is possible to accelerate from 2018 to 2017 deductions for bonus payments (even though, at this stage, it is not entirely clear when or whether tax rate changes will actually go into effect).  This strategy may work for other types of incentive compensation as well.

Generally, deductions must be taken in the year that is “proper” based on the taxpayer’s accounting method.  Most corporations are accrual basis taxpayers and deductions by accrual basis taxpayers generally are to be taken when the liability is incurred—that is when all events establishing liability have occurred (commonly known as the “all events test”).  In order for the all events test to be met, three things have to happen:  (1) all events have occurred that establish the fact of liability, (2) the amount of the liability can be determined with reasonable accuracy, and (3) economic performance has occurred.

The first prong of the all events test is met when the event fixing liability occurs or the payment is unconditionally due.  In the case of bonus compensation, that might mean that the employee remains employed through a specified date (e.g., the end of the bonus year or the bonus payment date).  Sometimes that means that performance targets have to be satisfied at certain levels.  In any case, the relevant “event” is not likely to occur earlier than the end of the year and possibly later into the next year.  Revenue Ruling 2011-29, however, provides that the first prong of the all events test can be met if, at the end of the year in which the services are performed, the company is obligated to pay a minimum bonus amount.  This is usually accomplished by the company’s board, compensation committee or other committee or person with the requisite authority adopting resolutions obligating the company to pay the minimum amounts.  The adopting resolutions do not have to be a minimum amount PER INDIVIDUAL but rather an aggregate amount.  If this can be established, then the first prong would be met in year one (and eligible for deduction in year one if the other prongs of the all events test are met for year one).

It is possible that your board (or applicable committee) would have sufficient information to determine at least a minimum aggregate amount that would be paid in bonuses and could establish that prior to year end.  Assuming other requirements are met, this could accelerate the deduction for the group of employees covered by the minimum, at least as to the extent of the minimum amount.  That minimum would actually have to be paid though—in other words, you could not decide to pay less for whatever reason.

The foregoing approach would most likely not work for covered employees within the meaning of section 162(m) of the Internal Revenue Code (assuming 162(m) remains in effect after tax reform) because it is highly unlikely that the company would have the requisite information to certify the performance targets prior to year end so as to establish the minimum amount.  In addition, if the company did indicate that the covered employees would get a minimum amount (or any bonus amount) without regard to certification of the targets, the 162(m) treatment would be blown.   Accordingly, in drafting resolutions establishing the minimum bonus amount, the company may wish to expressly exclude its 162(m) covered employees.

The Revenue Ruling also indicates that if the foregoing approach is taken, it will be treated as a change in accounting method and the appropriate rules for such change would need to be observed and taken into account going forward.

If this approach is of interest to your company, talk to your internal and external tax advisors to determine whether establishing the facts early can help you.