Topics included in this issue:
Do You Want to Eliminate 401(k) Plan Testing?
New Cafeteria Plan Rules Delayed
DOL Elevates Scrutiny of 401(k) Fees to Higher Level
Tight Deadline for Reconstructive Surgery Notice
Automatic 401(k) Contributions Approved by the IRS
DO YOU WANT TO ELIMINATE 401(k) PLAN TESTING?
For plan years beginning in 1999, employers have two safe harbor contribution alternatives which can eliminate the testing of the permitted levels of elective and/or matching contributions under 401(k) plans for highly compensated employees. On October 29 the IRS published proposed regulations outlining the conditions for the safe harbors.
General RequirementsBoth of the safe harbor alternatives require the following:
- The safe harbor employer contributions must be fully vested when made, must be made to all employees who were participants during the plan year, and cannot be withdrawn upon hardship.
- Notice of the contribution levels must be given within 30 to 90 days before the beginning of the plan year in a manner which can be understood by the average participant. Notice is not required until March 1, 1999 for plan years beginning before April 1, 1999.
- The rate of matching contributions at any rate of elective contributions for a highly compensated employee cannot be greater than the matching rate for any nonhighly compensated employee.
- The rate of matching contributions cannot increase as elective contributions increase. Changes in the level of elective contributions must be permitted for a period of at least 30 days after receipt of the notice.
Currently, the average rate of highly compensated employee's elective, pretax contributions, (ADP--Average Deferral Percentage), matching contributions (ACP--Average Contribution Percentage), and, in some instances, combined percentages of contribution (Multiple Use) must not be greater than a multiple of, or an addition to, the average percentage of corresponding contributions by nonhighly compensated employees. All of this testing may be eliminated if the employer meets the general requirements and one of the following options for plan eligible, nonhighly compensated employees:
- Option 1A-- 3% Contribution. A contribution of 3% of compensation.
- Option 1B. A matching contribution of 100% of elective contributions up to 3% of pay and 50% of elective contributions between 3% and 5% of pay.
- Option 1C. A matching contribution at a rate at least equal to the rate under Option 1B at every level of elective contributions.
Under this alternative, the employer must meet the general requirements and the contribution requirements under any of the alternatives under Option 1. In addition, if matching contributions are made, the match cannot be made on elective contributions of greater than 6% of pay. This alternative is also available for 403(b) plans.
Notice and Plan Amendments
The notice of the use of a safe harbor alternative must include:
- the name of the plan, the formula being utilized, a disclosure of other employer contributions to the plan; an explanation of the type, amount and procedures for elective deferrals; and a summary of the vesting and withdrawal provisions of the plan.
Evaluating Use of the Safe Harbors
The advantages of eliminating testing are twofold--first, eliminating the administrative burden and expense of testing and second, freeing highly compensated employees to make the full, allowable $10,000 401(k) contribution. Weighed against the reduced expense and administrative burden and the increased contributions for highly compensated employees must be:
- The increased cost of the required nonelective or matching contributions;
- The hidden cost of eliminating forfeitures which result from the vesting requirements which would have applied to the nonelective or matching contributions;
- The need to commit to the contributions and meet an earlier notice requirement; and
- The potential complications of using different contributions or matching amounts for multiple businesses that are combined for testing purposes.
NEW CATETERIA PLAN RULES DELAYED
On November 23, the IRS announced that the new rules for mid-year changes to Section 125 cafeteria plan elections, originally scheduled to go into effect in 1999, are delayed pending further IRS guidance. These new regulations, discussed at the Warner Norcross & Judd Employee Benefits Update seminar last May, will require amendments to most Section 125 plan documents and Summary Plan Descriptions (SPDs) and will affect how mid-year election changes are handled. The new rules will not be effective until at least 120 days after further IRS guidance is issued. Until then, plan administrators can rely on both the old change in family status rules and the new rules.
DOL ELEVATES SCRUTINY OF 401(k) FEES TO HIGHER LEVEL
The Department of Labor recently released two documents of critical importance to 401(k) plan sponsors. Both documents involve the fees typically charged against participant accounts in a 401(k) plan. The first document, an information piece designed to be used as a guide for participants to analyze their employer's plan, is very well written. It will likely sensitize participants to the fees charged against their accounts and to the responsibility of their employer to be sensitive to those fees in selecting plan service providers and investment vehicles.
The second piece is a detailed study of 401(k) fees across the country. For the first time, employees will be able to compare the fees charged against their accounts with statistical data.While there is nothing (yet) which says that fees in excess of the levels found in the study will lead to increased scrutiny or are wrongful, we might expect the average fees found in the study to become a benchmark, with employers called upon to "defend" anything which departs from that standard. Overall, DOL interest in the area will likely translate into increased DOL audit activity and participant litigation.
While no one is predicting an immediate onslaught of participant litigation in this regard, an example provided by the DOL in the participant information piece provides a sobering thought. That example illustrates that fees which are one percent higher than the norm can have a 28% impact on the participant's final account balance at retirement. That is the stuff of which future liability claims may be made.
As the law is presently constituted, it is generally the employer's responsibility to be aware of the fees impacting its 401(k) plan and to take those fees into account in selecting service providers and investment vehicles. From a technical standpoint this represents another aspect of "procedural" fiduciary duty. Actually, it is not so much the absolute fee that counts; it is whether you as the employer can demonstrate that you were aware of the fees and properly weighed them in your decisions regarding the plan. In some cases, that element of procedural fiduciary duty may even require competitive bidding.
In turn, this illustrates, once again, the importance of proper documentation of your activity as an employer with respect to your plans. It also reinforces the importance of a periodic "plan audit" as an appropriate step in checking your paper trail in that regard.
In addition, there is an enormous practical aspect to being familiar with the fees being charged with respect to your plans. We recently uncovered a large "finder's fee" in an arrangement we reviewed on behalf of an employer. This finder's fee was nothing more than a large annual commission to the broker who had recommended the service provider to the employer. Over a period of years, hundreds of thousands of dollars would have been charged to the employer and the plan for nothing more than the initial referral by the broker. To make matters worse, there was no requirement that the amount be paid. Once we identified this and highlighted it for our client, we were able to negotiate a substantial decrease in the overall fee, benefitting both the employer and plan participants and establishing the employer's due diligence in that regard.
Call us when you are either entering into 401(k), pension and health and welfare service contracts of any kind or selecting investment vehicles. We'll help protect you from a legal and business standpoint and provide an impartial third party review of what you are being asked to pay--and of what you are asking your employees to pay as well.
TIGHT DEADLINE FOR RECONSTRUCTIVE SURGERY
Buried within the massive budget bill signed in late October is a provision requiring group health plans that cover mastectomies to pay for reconstructive breast surgery following the mastectomy. The new law also requires that plan participants receive written notice of this coverage upon enrollment and annually thereafter. An initial notice must be provided by the earliest of:
- the next mailing made by the plan, HMO or insurance company to participants after 10/22/98,
- as part of the annual enrollment packet, or
- January 1, 1999.
The Department of Labor has not provided a sample notice. If you would like a copy of the law or need assistance preparing a notice for your plan, contact any member of the WN&J Employee Benefits Group.
AUTOMATIC 401(k) CONTRIBUTIONS APPROVED BY THE IRS
The IRS (service) recently issued a ruling approving a "negative election" feature for 401(k) plans. When a 401(k) plan contains a negative election feature, the employer will automatically contribute a fixed percentage of each eligible employee's wages or salary to its 401(k) on the employee's behalf. The employee may make an affirmative election to receive cash compensation rather than a 401(k) contribution. Otherwise, salary reduction 401(k) contributions are automatically made for the employee. In other words, with a negative election feature, an employee must affirmatively opt out rather than into their employer's 401(k) plan. While some plans have used a negative election feature for years, this ruling gives the Service's official blessing, as well as clarifies how a negative election program should operate.
The Contents of the RulingIn its ruling, the Service states that to have a permissible negative election program, the employee must have been given an "effective opportunity" to receive his or her compensation as cash rather than as a salary-deferred election. This means the employee must receive a notice explaining his or her rights to opt out of the plan, and a "reasonable period" within which to do so. While what constitutes a "reasonable period" of time is not defined in the ruling, the period must expire before the compensation becomes available to the participant.
The 401(k) plan that the Service endorsed in its ruling automatically set an employee's elective deferral at 3% of compensation unless the employee affirmatively elected to receive cash or to have a different percentage of compensation contributed to the plan. Each employee was given a notice at the time of hire explaining how negative elections operated, how they could opt out of the automatic election and how they could change the 3% contribution percentage to a different amount. The Service offered additional guidance on a few aspects of negative elections. The Service approved a provision of the 401(k) plan that directed investment of the participant's 401(k) contributions (and any matching contributions) if the participant failed to make an investment election. The IRS cautioned, however, that such default investments were less likely to relieve plan fiduciaries from fiduciary liability than plan investments made at the direction of plan participants. The Service also stated that negative elections would be permissible in plans that contained a waiting period before the employee was eligible to make elective deferrals.
What This May Mean for Your 401(k) Plan
Negative elections make enrolling participants faster and easier. Most of the paperwork is limited to those who affirmatively opt out of the negative election or those who later want to change or cancel their automatic salary reductions. Benefits watchers are also reporting that employers that adopt negative elections can expect higher participation rates. While more employees receive the benefits of saving for retirement, employers may enjoy greater participation numbers which, in turn, help plans meet the discrimination tests.
If you are interested in implementing negative elections for your 401(k) plan, please contact us to discuss how they can work for you.