Senators Portman and Cardin Appeal to Treasury for Retirement Nondiscrimination Help

We don't see it much in Washington these days, but Senators Rob Portman (R-OH) and Ben Cardin (D-MD) are teaming up once again. That's right, senators from opposing parties are finding common ground to do something together. And, they have a worthy goal. The key question, in my mind, is whether or not they have found a good way to achieve that goal.

A little more than a week ago, the dynamic duo penned a letter to Treasury Secretary Jack Lew asking that the Treasury Department review pension nondiscrimination regulations, specifically with regard to so-called soft frozen plans. They did this under the guise of retirement security for working Americans.

I have mixed feelings about what they write and I will come back to that later. First, however, it is necessary to give some background on pension nondiscrimination and soft freezes.

ERISA, signed into law on Labor Day, 1974, generally prohibited companies from providing nondiscriminatory pension benefits. While the rules perhaps had more teeth than I am going to see, this was generally achieved by showing three things about the pension benefits that were offered:

• That they were properly integrated (with Social Security) under Revenue Ruling 71-446
• That they covered a reasonable cross-section of employees (this was difficult to not satisfy in my experience)
• That they were comparable within the meaning of Revenue Ruling 81-202

Along came the Tax Reform Act of 1986 (TRA). It added some more specific rules to the Internal Revenue Code (Code) among them sections 410(b) and 401(a)(4). Together with a few related provisions, this suite of rules became known generally as the nondiscrimination rules. Regulations were long and cumbersome. But, unlike previous rules, they prescribed objective tests to determine whether the retirement benefits offered by a company were nondiscriminatory.

Objective tests are good and they are bad. From a practitioner's standpoint, they give us a set of bright line rules to follow. Exceed the thresholds and you pass. Fall short and you fail. It's pretty simple.

These sections of the Code were regulated fairly early in my career and I became somewhat expert at dealing with them. What I learned, somewhat oversimplified, is that it is quite rare that a tester, highly knowledgeable with respect to the rules, cannot force a company's plans through the tests to prove them nondiscriminatory. In fact, I worked with some situations that on their faces were very discriminatory in favor of highly compensated employees (HCEs) and proved that they were not.

There is one situation, however, that has always proven to be troublesome -- that of soft frozen plans. Generally, a defined benefit (DB) plan is soft frozen when participation (and benefit accrual) continues for employees who were in the plan on the soft freeze date and never happens for those who were not. In a variation on the theme, future participation is sometimes limited to those who have met some age and service threshold with the company as of the soft freeze date. 

What frequently happens is that over time, the population that remains in the DB plan becomes more predominantly composed of HCEs. And, as this happens, the DB plan on its own is not nondiscriminatory. What companies would like to do is to look at the total retirement program and show that it is nondiscriminatory. But, as many of these companies have only a 401(k) plan going forward (401(k) plans cannot be aggregated with DB plans for most testing purposes), the math just doesn't work.

So, companies wind up taking the only alternative that they can see and eventually totally (hard) freeze the DB plan. When they do so, the grandfathered employees, as a group, are often just at the point in their careers that their pension accruals are largest. These are the years that were going to allow them to retire securely.

This is the problem that Portman and Cardin seek to address. They tell us that the nondiscrimination rules were meant to enhance retirement security, not to detract from it. To me, this is where the difference in views that often occurs between legislators and businesspeople comes to the fore. 

Legislators, when developing retirement rules have often preached that if we force companies to provide similar benefits to nonhighly compensated employees (NHCEs) as to HCEs that the companies would increase NHCE benefits to meet that bogey. To paraphrase President Kennedy (who used the slogan of the New England Council (Chamber of Commerce)), they assume that a rising tide will lift all boats.

Historically, it hasn't worked that way. Faced with that situation, companies have opted to provide smaller benefits across the board, thereby lessening retirement security for most, and have found other ways to provide for their key employees.

Senators Portman and Cardin have a worthy goal. They seek to find a way to allow companies to continue to provide meaningful benefits to those people who have an expectation of those benefits. But, even if they do, they cannot solve the whole problem.

For years, Congress has passed bills designed to enhance retirement security only to see that each one in turn has caused more and more companies to get out of the business of providing retirement benefits to their employees. Oftentimes, these rules, such as the Pension Protection Act of 2006, have been poorly thought through, and actually decrease retirement security for workers. In fact, during my career, each time a major piece of pension legislation has become law, a swath of companies seek ways to get out of the business of providing pensions. But, no law over that period has caused companies to start up new plans.

If we want to restore a sense of retirement security for typical working Americans, we need to start anew from the beginning, not simply apply another band-aid to the problem. That said, I applaud the senators for making far more of a constructive effort than any of their colleagues.