Six considerations to reduce plan sponsor fiduciary risk—and raise participant retirement readiness
- Most companies aim to attract, cultivate, and retain a talented base of productive, loyal, and retirement-ready employees.
- A rash of 401(k) class-action lawsuits and low participation rates have revealed rifts between plan sponsor intentions, on the one hand, and participant perceptions of actual practices, on the other hand.
- Details about plan investment lineups often reside at the center of the controversy and confusion.
- We examine six items a plan sponsor might consider when building, maintaining, and altering the fund menu for its participants.
Creating an investment lineup is part art and part science. Screening funds and getting to a diverse mix of options is fairly straightforward. The more challenging questions are: Will the lineup motivate action or sow confusion? Does it have a reasonable chance of helping employees achieve retirement readiness? Does it align with plan demographics, and will it adequately guard against increasingly common class-action lawsuits? Here we look at six things to consider when building an investment menu for employees.
1. Treat your investment policy statement as your North Star
When it comes to sponsoring a defined contribution (DC) plan—and managing the accompanying fiduciary risks—documenting your process is job one. In today’s litigious environment, plan sponsors need to stand ready to defend each decision by demonstrating how it’s tied to a tight fiduciary process and driven by the best interest of the plan’s participants. Documentation applies to virtually all aspects of plan design, and it’s especially relevant to the process of creating, monitoring, and adjusting the lineup of investments available to participants.
While the law doesn’t explicitly require DC plans to have an investment policy statement, the Employee Retirement Income Security Act of 1974 (ERISA) calls for the plan’s investment committee to exercise the “care, skill, prudence, and diligence under the circumstances” that a prudent person would use in selecting the funds for the lineup. In a U.S. Department of Labor (DOL) audit, it would be difficult to document evidence of such diligence in the absence of an investment policy statement that outlines the plan’s scope and purpose, its governance structure, and its investment objectives. How does the plan interpret diversification? Which asset categories merit representation in the lineup? What are the procedures for selecting investment managers within those categories? When evaluating the plan’s performance, what defines success—and distinguishes it from failure?
Once you identify the right set of questions to ask and then commit to setting the answers down on paper, building the investment lineup becomes a more manageable exercise in finding the funds that best equip the plan’s participants to meet their retirement savings goals. If your plan already has an investment policy statement, you may wish to compare it with the CFA Institute’s “Elements of an Investment Policy Statement for Institutional Investors.” Are you confident your investment policy statement will help you meet today’s exacting standards of fiduciary care? Does it address the current needs of your plan participants, regardless of whether they’re still working or retired?
Some would regard the failure to prepare and maintain an investment policy statement as a gap in procedural prudence. If your plan doesn’t already have one, then you may need some help: Consider hiring an investment consultant or financial professional to draft an investment policy statement for you right away.
2. Get professional help if, when, and where you need it
External fiduciary support doesn’t need to be limited to the drafting of the investment policy statement. Plan sponsors can seek professional help in varying degrees, depending on their needs, abilities, and willingness to shoulder the fiduciary risks unassisted. At one extreme, a large multinational conglomerate maintaining a legacy defined benefit pension plan, a seasoned in-house investment staff, and a sophisticated enterprise risk management system might not need any help in discharging its fiduciary duties on behalf of its DC plan participants. At the other extreme, a local start-up venture might need a turnkey fiduciary outsourcing solution, embedding a full complement of services.
Most plan sponsors reside somewhere in the middle. In many cases, engaging what’s called an ERISA Section 3(21) advising fiduciary may make the most sense. Rather than make the decisions, these 3(21) advising fiduciaries render advice in exchange for a fee and can assist in building the fund lineup—often by drawing on their own in-house due diligence and other sources of investment research to make recommendations—and assist in establishing an oversight process for benchmarking expenses and evaluating revenue-sharing arrangements. Working with a 3(21) advisor allows sponsors to get guidance and support without outsourcing their rights and responsibilities to make final decisions on behalf of the plan’s participants.
In cases where more extensive help is desired, sponsors can hire a 3(38) investment manager fiduciary—an investment professional who exercises full discretion over the selection and monitoring of the plan’s fund menu.
Nearly three-quarters (73.1%) of retirement plans now retain an independent investment advisor to help the sponsor with fiduciary responsibilities, up from 69.5% in 2016.¹ It’s important to note that plan sponsors who outsource such fiduciary duties still have an obligation to monitor the third parties they’ve engaged. No matter if plan sponsors engage some level of outside help or go it alone, they’re responsible for establishing and documenting a process whereby the fiduciary of record:
- Prudently selects, monitors, and removes investment options as needed
- Follows the plan’s investment policy statement
- Monitors plan fees and ensures the plan’s assets aren’t used to subsidize other plans
Funds must be individually added, monitored, and removed through a prudent process that applies prevailing investment industry practices.² While those prevailing practices have grown more rigorous over the past decade, the enduring principle behind fund lineups calls for a broad range of investments so that participants can create balanced, diversified portfolios.
3. Diversify and streamline to strike the right balance of choice
A broad range of investments doesn’t imply that you need a lineup of many investment options. Plan sponsors claiming ERISA Section 404(c) safe harbor protections can conceivably offer a lineup with as few as three funds, as long as they have materially different risk/return profiles and each one is internally diversified in its own right. The mean number of funds per plan is nearly 13, with one standard deviation around the mean of plus or minus 7, which sets the typical range somewhere between 6 and 20 funds.³
Many plan sponsors have started to hug the high side of that range or err beyond it, ending up with too many choices on the menu. Blind devotion to Morningstar style boxes might be one reason why. For example, slicing U.S. equity into a three-by-three grid—large, mid, and small caps on one axis; growth, core, and value styles on the other—creates nine distinct fund categories without providing any diversification benefit beyond domestic stocks. Taking a similar approach to bonds, non-U.S. developed markets, emerging markets, sectors, real assets, and alternative investments can quickly render an à la carte fund lineup unmanageable for most participants. Academic research has indeed shown that “participation rates fall as the number of fund options increases.”⁴
One way to avoid paralyzing participants with this paradox of choice is by offering a qualified default investment alternative, or QDIA, to anchor the plan’s investment menu. Target-date funds have become the clear favorites, with more than three-quarters of sponsors now offering them as the QDIA of choice.⁵ The right target-date fund suite represents the plan lineup’s linchpin, offering participants instant age-appropriate diversification in a single step. Target-date fund adoption has been on the rise and is disproportionately skewed toward younger investors since many older employees began making 401(k) contributions before 2006, when the Pension Protection Act established QDIAs and automatic enrollment.
4. Favor the lowest, most equitable fee structures—on a net basis
In our view, if the lineup contains a mix of funds with and without revenue sharing, then the advisor may need to work with the sponsor and recordkeeper to ensure fees are fair for all participants. Many plans cover administration expenses through a flat fee allocated to each participant. However, for plans that elect to allocate expenses on an asset-weighted basis, then fees need to be proportioned across the participant base accordingly. Some participants may pay proportionally more in expenses than others unless adjustments are made. Participants disproportionately subsidizing plan-level costs by investing in fund options with relatively high revenue-sharing agreements may need to be reimbursed by participants investing in funds with no, or relatively low, revenue-sharing agreements. Working with a recordkeeper that levelizes fees and credits back revenue share proceeds to affected participants provides an important safeguard against fee subsidization that would otherwise leave some savers at a relative disadvantage.
While plan sponsors aren’t required to choose the least expensive investment options, they must ensure that fees are reasonable in light of the services rendered. The regulations around expenses have teeth. Since 2006, failing to grasp the significance of nuances tied to their fiduciary duties has cost plan sponsors $460 million in legal settlements—with more cases pending.⁶ The majority (57%) of plan sponsors report being at least somewhat concerned about potential litigation according to one study, which concluded that “in the current litigious climate, plan sponsors are closely evaluating all decisions from a lens of how it could expose the plan to litigation risk.”⁷
While many legal challenges are at least nominally about fees, the plaintiffs’ attorney at the center of much of the recent ERISA litigation articulates a common thread behind the grievances that initiated his clients’ lawsuits. When asked how fiduciaries could avoid legal challenges, Jerome Schlichter, senior partner of the firm that bears his name, said, “The beacon that should guide any 401(k) plan advisor, as well as employer, is to operate the plan for the exclusive benefit of your employees and retirees … if there are any gray areas or any doubts, you come back to that beacon and let that be your standard.”⁸
While the requirement to act in the best interest of participants has been in place for decades, the notion of what, exactly, constitutes that best interest is far more fluid. “The standard of care for plan fiduciaries is always evolving. What may have been appropriate 10 years ago may not be sufficient today.”⁹
5. Honor plan demographics—and diverse participant circumstances
A review of demographic data compiled from more than 2.8 million participants in John Hancock’s recordkeeping platform has helped us gauge the actions of the average participant over the course of a career. We can assume that the typical participant starts making deferrals at age 25 while earning a salary of $40,000, which grows at about 1.8% annually over the next four decades, and then retires at age 65 with an ending annual salary of $84,000.
Yet the potential dispersion from that hypothetical participant experience can be immense, depending on a number of factors, including the employer’s industry, size, demographic characteristics, and, even within the same plan, the diverse range of idiosyncratic circumstances and individual experiences represented within the plan’s participant base.
Even a subset of a plan’s participants sharing many of the same demographic characteristics can demonstrate a striking range of different financial circumstances. Using information drawn from our participant database of plans administered by John Hancock, we studied this particular type of intraplan diversity and highlighted a manufacturing company’s plan as a representative example to illustrate the point.
We isolated the plan’s participants within a specific cohort—those aged 40 to 49 with at least a decade of service at the firm. This screen represented an effort to compare colleagues’ circumstances at a common career stage, filtering out those who might have meaningful savings in a previous employer’s plan. We found that 18% held plan account balances of less than $10,000, while 7% held account balances of over $250,000.¹⁰ Some members of the cohort are clearly more prepared for retirement than others.
Applying the same methodology to plans in different industries and sectors revealed similar dynamics, and it speaks to a wider challenge: While age is an obvious factor in determining an appropriate asset allocation, retirement preparedness is an equally important determinant, particularly as a participant nears retirement. The point for sponsors to take away: Some participants are bound to need much more help than others—and the shared investment lineup needs to work for all of them.
6. Make personalized advice an investment option for participants
Even if the lineup of fund options represents an appropriate set of tools to build a diversified investment portfolio, those tools aren’t much use to a participant who doesn’t know what to do with them, and they’re even less useful to those who don’t contribute much—or anything—to the plan. Fortunately, plan sponsors have the option of providing a managed account program or—for those participants who need more hands-on help—access to an advisor, who can offer personalized guidance and investment recommendations.
Relative to their do-it-yourself peers, participants who have a financial professional are:
- More likely to have a higher 401(k) contribution rate
- More likely to be on track with their savings strategies and budgeting
- Less likely to have taken a loan from their 401(k) plan accounts
While some 71% of all retirement plan participants believe financial matters add stress to their lives, that figure drops to 53% among participants who work with a financial professional. Moreover, working with an advisor prompts a retirement saver into making healthier deferral decisions: 28% of participants have increased their savings rates—by an average of 2% of their salaries—after adopting an advice solution laid out by our in-plan personal financial services advice team at John Hancock.¹¹
Half of all retirement savers use their own discretion when managing their investments both inside and outside of their retirement plan, but workers across the board show a relatively high and growing interest in assistance: Three in five say receiving employer financial help would reduce their level of stress. An even larger share—65%—say it would get them to start saving, or start saving more, for retirement.¹¹
Financial professionals can also help implement dynamic contribution schemes that allow participants to deal with other financial considerations—think about millennials burdened by high student debt loads, for example—while they begin saving for retirement.
The need extends beyond those in their accumulation years. Baby boomers are expected to continue driving up the demand for advice with respect to decumulation and spend-down strategies. Each day, more of these new retirees begin to draw on their investment portfolios to meet living expenses no longer covered by a paycheck. With defined benefit plans on the decline, concerns about the long-run viability of Social Security, and a demographic bulge of millennials marching toward their prime earning years, the need for retirement saving and spending advice across the American workforce is only likely to grow from here.
What to do now
Building a retirement plan investment lineup is a fairly straightforward exercise, in theory. The more difficult challenges arise when working to get participants to make the most of it in practice. Consider if the fund lineup fosters broad-based participation or paralyzes would-be savers into inaction. Does it stand a reasonable chance of helping employees achieve retirement readiness? Does it align with plan demographics, and will it help guard the sponsor against increasingly common class-action lawsuits? Plan sponsors can consider pursuing a few simple steps to raise the odds of arriving at answers that fall on the right side of these questions.
- Consider seeking professional help in reviewing your investment policy statement, and consider engaging a specialized retirement plan consultant or advisor who can provide fiduciary skills and expertise not residing within the ranks of your internal benefits and investment staff.
- Aim to establish equitable fee structures, and choose funds and share classes providing the lowest net cost to the plan participants.
- Endeavor to offer personalized advice to your participants through a managed account program or access to a fiduciary advisor to help them make the most of the plan’s investment choices.
1 “61st Annual Survey of Profit Sharing and 401(k) Plans,” Plan Sponsor Council of America, 2018. 2 ERISA Section 404(a)(1)(B). 3 “Choice proliferation, simplicity seeking, and asset allocation,” Journal of Public Economics, March 2010. 4 “How Much Choice Is Too Much? Contributions to 401(K) Retirement Plans,” Pension Research Council, 2003. 5 “60th Annual Survey of Profit Sharing and 401(k) Plans,” Plan Sponsor Council of America, 2018. 6 “Anthem Cash Pushes Schlichter 401(k) Settlement Wins to Near $460M,” Ignites, 4/9/19. 7 “U.S. Retirement Markets 2016: Preparing for a New World Post-Conflict of Interest Rule,” Cerulli Associates, 2016. 8 “How (Not) To Get Sued By 401k Tort Terror Jerry Schlichter,” 401kspecialistmag.com, 2/19/16. 9 “Heat is rising on financial firms’ use of own strategies in their 401(k) plans,” Pensions & Investments, 6/23/14. 10 John Hancock, 2017. 11 John Hancock, 2018.