4 Problems at the Intersection of Finance and HR

They are two of the most visible departments in corporations even though neither directly produces revenue, but does require expenditures -- Finance and HR. Historically, they have been at odds neither particularly caring about the worries of the other despite being inextricably linked. This occurs in many ways, but I'm going to focus on four in the order that they seem to arise:

1. Recruiting
2. Cost control and stability
3. Retention
4. Workforce transition

Of course there are many more, but I have some thoughts that link all four of these together. In 2019, that's not always easy as there are constant pushes in Congress to tell employers how much they must pay, which benefits they must provide, and at what costs. How then does one company differentiate itself from another?

To the extent possible, every employer today seems to offer teleworking, flexible work hours, and paid time off banks. While they once were, those are no longer differentiators. After the Affordable Care Act took effect, the health plans at Company X started to look a lot like the health plans at Company Y.

I have a different idea and while I am probably biased by my consulting focus, I am also biased by research that I read. Employees are worried about retiring someday. They are worried about whether they will have enough money or even if they have any way of knowing if they will have enough money. They are worried about outliving their wealth (or lack thereof). They are worried about having the means to support their health in retirement.

I know -- you think I have veered horribly from my original thesis. We're coming back.

Today, most good-sized companies have 401(k) plans and in an awful lot of those cases, they are safe harbor plans. They are an expectation, so having one does not help you the employer in recruiting. While once they had pizzazz, today they are routine. 

Cost stability seems a given, but it's not. Common benchmarks for the success of a 401(k) plan including the percentage of employees that participate at various levels. You score better if your employees do participate and at higher levels. But, that costs more money.

If there's nothing about that program that sets you apart, it doesn't help you to retain your employees. And, as we all have learned, the cost of unwanted turnover is massive often exceeding a year's salary. In other words, if you lose a desirable employee earning $100,000 per year, it is estimated that the total true cost of replacing her is about $100,000. That would have paid for a lot of years of retirement plan costs for her.

There will come a time, however, that our desirable employee thinks it's time to retire. But, she's not certain if she is able. And, even if she works out that she is able, retirement is so sudden. One day, she's getting up and working all nine to five and the next, she has to fill that void. Wouldn't it be great to be able to transition her into retirement gradually while she transitions her skills and knowledge to her replacement?

You need a differentiator. You need something different, exciting, and better. You need to be the kid on the block that everyone else envies. 

You would be the envy of all the others if you won at recruiting, kept your costs level (as a percentage of payroll) and on budget, retained key employees, and had a vehicle that allows for that smooth transition.

I had a conversation with a key hiring executive earlier this month. He said he cannot get mid-career people to come to his organization from [and he mentioned another peer organization]. He was exasperated. He said, "We're better and everyone knows it, but their best people won't come over." I asked him why. He said, "It's that pension and I can't get one put in here." I asked him to tell me more and he explained it as one of those new-fangled cash balance plans with guaranteed return of principal -- i.e., no investment risk for participants, professionally managed assets, the ability to receive 401(k) rollovers, and the option to take a lump sum or various annuity options at retirement. He said that it's the "talk of the town over there" and that even though it seems mundane when you first hear about it, it's their differentiator and it wins for them.

We talked for a while. He wants one. He wants one for himself and he wants one to be as special as his competitor. He wants to be envied too. We talked more.

Stay tuned for their new market-based cash balance plan ... maybe. He and I hope that maybe becomes reality.

Using Cash Balance to Improve Outcomes for Sponsors and Participants

In a recent Cash Balance survey from October Three, the focus to a large extent was on interest crediting rates used by plan sponsors in corporate cash balance plans. In large part, the study shows that those methods are mostly unchanged over the past 20 years or so, this, despite the passage of the Pension Protection Act of 2006 (PPA) that gave statutory blessing to a new and more innovative design. I look briefly at what that design is and why it is preferable for plan sponsors.

Prior to the passage of PPA, some practitioners and plan sponsors had looked at the idea of using market-based interest crediting rates to cash balance plans. But, while it seemed legal, most shied away, one would think, due to both statutory and regulatory uncertainty as to whether such designs could be used in qualified plans.

With the passage of PPA, however, we now know that such designs, within fairly broad limits, are, in fact allowed by both statute and regulation. That said, very few corporate plan sponsors have adopted them despite extremely compelling arguments as to why they should be preferable.

Why are they preferable?

For roughly 20 years, the holy grail for defined benefit plan, including cash balance plan, sponsors has been reducing volatility and therefore risk. As a result, many have adopted what are known as liability driven investment (LDI) strategies. In a nutshell, as many readers will know, these strategies seek to match the duration of the investment portfolio to the duration of the underlying assets. Frankly, this is a tail wagging the dog type strategy. It forces the plan sponsor into conservative investments to match those liabilities.

Better is the strategy where liabilities match assets. We sometimes refer to that as investment driven liabilities (IDL). In such a strategy, if assets are invested aggressively, liabilities will track those aggressive investments. It’s derisking while availing the plan of opportunities for excellent investment returns.

How exactly does this work?

I alluded to the new design that was blessed by PPA. It is usually referred to as market-return cash balance (MRCB). In an MRCB design, with only minor adjustments necessitated by the law, the interest crediting rates are equal to the returns on plan assets (or the returns with a minor downward tweak). That means that liabilities track assets. However the assets move, the liabilities move with them meaning that volatility is negligible, and, in turn, risk to the plan sponsor is negligible. Yet, because this is a defined benefit plan, participants retain the option for lifetime income that so many complain is not there in today’s ubiquitous defined contribution world. (We realize that some DC plans do offer lifetime income options, but only after paying profits and administrative expenses to insurers (a retail solution) as compared to a wholesale solution in DB plans.)

When asked, many CFOs will tell you that their companies exited the defined benefit market because of the inherent volatility of the plans. While they loved them in the early 90s when required contributions were mostly zero, falling interest rates and several very significant bear markets led to those same sponsors having to make contributions they had not budgeted for. The obvious response was to freeze those plans and to terminate them if they could although more than not remain frozen, but not yet terminated.

Would those sponsors consider reopening them if the volatility were gone? What would be all of the boxes that would need to be checked before they would do so?

Plan sponsors and, because of the IDL strategies, participants now can get the benefits of professionally and potentially aggressively invested asset portfolios. So, what we have is a win-win scenario: very limited volatility for sponsors with participants having upside return potential, portability, and wholesale priced lifetime income options.

The survey, as well as others that I have seen that focus on participant outcomes and desires, tells us that this strategy checks all the boxes. Now is the time to learn how 2018’s designs are winnersfor plans sponsors and participants alike.

Wake Up and See the Light, Congress!

Congress has a once-in-a-generation opportunity. Since its first major overhaul in 1922, Congress has seen fir to make earth-shaking changes to the Internal Revenue Code (Code) once every 32 years. 1922. 1954. 1986. And, while it seems that they may be one year early this time, they are pitching tax reform once again.

The concept of qualified retirement plans as we know them today comes from the Employee Retirement Income Security Act of 1974 (ERISA) signed into law that Labor Day in 1974. Since that time, there have been relatively few changes to the Code affecting retirement plan design. And, frankly, most of them have come on the 401(k) side. In fact, Section 401(k) was added to the Code after ERISA and since then, we have been blessed with safe harbor plans, auto-enrollment, auto-escalation,Roth, and qualified default investment alternatives (QDIAs). Over the same period, little has been codified or regulated to help in propagating the defined benefit plan -- you know, that plan design that has helped many born in the 40s and early 50s to retire comfortably.

Isn't this the time? Surely, it can be done with little, if any, effective revenue effects.

Since ERISA, there have been really significant changes in defined benefit (DB) plan design including the now popular traditional cash balance plan, the even better market return cash balance plan, pension equity plan, and less used other hybrid plans. And, DB plans have lots of features that should make them more popular than DC plans, especially 401(k) plans.

• Participants can get annuity payouts directly from the plan, thereby paying wholesale rather than the retail prices they would pay from insurers for a DC account balance.
• Participants who prefer a lump sum can take one and if they choose, roll that amount over to an IRA.
• Assets are professionally invested and since employers have more leverage than do individuals, the invested management fees are better negotiated.
• In the event of corporate insolvency, the benefits are secure up to limits.
• Plan assets are invested by the plan sponsor so that participants don't have to focus on investment decisions for which they are woefully under-prepared.
• Participants don't have to contribute in order to benefit.

But, they could be better. Isn't it time that we allowed benefits to be taken in a mixed format, e.g., 50% lump sum, 25% immediate annuity, 25% annuity deferred to age 85? Isn't it time that these benefits should be as portable as participants might like? Isn't it time to get rid of some of the absolutely foolish administrative burdens put on plan sponsors by Congress -- those burdens that Congress thought would make DB plans more understandable, but actually just create more paperwork, more plan freezes, and more plan terminations?

Thus far, however, Congress seems to be missing this golden opportunity. And, in doing so, Congress cites the praise of the 401(k) system by people whose modeling never considers that many who are eligible for 401(k) plans just don't have the means to defer enough to make those models relevant to their situations.

Sadly, Congress prefers to keep its collective blinders on rather than waking up and seeing the light. Shame on them ...

Instead of Making Defined Contribution Look More Like Defined Benefit, ...

I don't think I've ever ended the title of a blog post with an ellipsis before. But, surely, there's a first time for everything.

Lately, the benefits press has written an awful lot about what must be the latest trend in employer-provided retirement benefits -- making the defined contribution (DC) plan look more like the defined benefit (DB) plan. Perhaps I am missing something, but it appears that this "major" initiative has two components to it (that's right, just two):

• Communication of an estimate of the amount of annuity a participant's account balance can buy
• The option to take a distribution from the plan as either a series of installments or as an annuity

Let's consider what's going on here.

Annuity Estimate

Yes, there is a huge push from the government and from some employers to communicate the annual benefit that can be "bought" with the participant's account balance. Most commonly, this is framed as a single life annuity beginning at age 65 using a dreamworld set of actuarial assumptions. For example, it might assume a discount rate in the range of 5 to 7 percent because that's the rate of return that the recordkeeper or other decision maker thinks or wants the participant to think the participant can get.

I have a challenge for those people. Go to the open annuity market. Find me some annuities from safe providers that have an underlying discount rate of 5 to 7 percent. You did say that you wanted a challenge, didn't you?

I'm taking a wild (perhaps not so wild) guess that in late 2016, you couldn't find those annuities. In fact, an insurer in business to make money (that is why they're in business, isn't it) would be crazy today to offer annuities with an implicit discount rate in that range.

But, annuity estimates often continue to use discount rates like that.

Distribution Options

Many DC plans offer distribution in a series of installments. Participants rarely take them, however, For most participants, the default behaviors are either 1) taking a lump sum distribution and rolling it over, or 2) taking a lump sum distribution and buying a proverbial (or not so proverbial) bass boat.

Why is this? I think it's a behavioral question. But, when retiring participants look at the amount that they can draw down from their account balances, it's just not as much as they had hoped. In fact, there is a tendency to suddenly wonder how they can possibly live on such a small amount. So, they might take a lump sum and spend it as needed and then hope something good will happen eventually.

Similarly, if they have the option of getting an annuity from the plan, they are typically amazed at how small that annuity payout is. And, even with the uptick in the number of DC plans offering annuity options, the take rate remains inconsequentially small.

A Better Way?

Isn't there a better way? 

Part of the switch from DB plans to DC plans was predicated on the concept of employees get it. They understand an account balance, but they can't get their arms around a deferred annuity. So, let's give them an account balance.

Part of the switch from DB to DC plans was to be able to capture the potential investment returns. Of course, with that upside potential comes downside risk. Let's give them most of that upside potential and let's take away the worst of that downside risk. That sounds great, doesn't it.

Once these participants got into their DC plans, they wanted investment options. I recall back in the late 80s and early 90s that a plan with as many as 8 investment options was viewed as having too many. Now, many plans have 25 or more such options. For what? The average participant isn't a knowledgeable investor. And, even the miraculous invention commonly known as robo-advice isn't going to make them one. Suppose we give them that upside potential with professionally managed assets that they don't have to choose.

Oh, that's available in many DC plans. They call them managed accounts. According to a Forbes article, management fees of 15 to 70 basis points on top of the fund fees are common. That can be a lot of expense. Suppose your account was part of a managed account with hundreds of millions or billions of dollars in it, therefore making it eligible for deeply discounted pricing.

There is a Better Way

You can give your participants all of this. It seems hard to believe, but it's been a little more than 10 years since Congress passed and President George W Bush signed the Pension Protection Act (PPA) of 2006. PPA was lauded for various changes made to 401(k) structures. These changes were going to make retirement plans great again. But, for most, they didn't.

Also buried in that bill was a not new, but previously legally uncertain concept now known as a market-return cash balance plan (MRCB). 

Remember all those concepts that I asked for in the last section, the MRCB has them all. Remember the annuity option that participants wanted, but didn't like because insurance company profits made the benefits too low. Well, the MRCB doesn't need to turn a profit. And, for the participants who prefer a lump sum, it would be an exceptionally rare (I am not aware of any) MRCB that doesn't have a lump sum option.

Plan Sponsor Financial Implications

Plan sponsors wanted out of the DB business largely because their costs were unpredictable. But, in an MRCB, properly designed, costs should be easy to budget for and within very tight margins. In fact, I might expect an MRCB to stay closer to budget than a 401(k) with a match (remember that the amount of the match is dependent upon participant behavior). And, in a DB world, if a company happens to be cash rich and in need of a tax deduction, there will almost always be the opportunity to advance fund, thereby accelerating those deductions.

Win-Win

It is a win-win. Why make your DC plan look like a DB when there is already a plan that gives you the best of both worlds.

Preparing the Higher Paid for Retirement

Retirement readiness is getting lots of press these days. With the decrease in the number of ongoing defined benefit (DB) retirement plan, many people are finding that they are not on a path to perhaps ever be ready to retire. While most of the focus has been on lower paid, nonhighly compensated (NHCE) workers, the discussion may be more relevant for the higher paid (HCEs) workers, especially those who are not among the very highest paid. When I was growing up, these people were often referred to as the upper middle class. Today, I don't hear that term as often.

Yesterday, I read an article that on its surface would seem to address this issue. It focused on the small employer, small plan world. It laid out a multi-step additive solution:

• Safe harbor 401(k)
• Cross-tested profit sharing
• Cash balance plan
• Nonqualified plan

There is nothing wrong with this solution. In fact, at companies that take this approach, it is likely that full career employees whether they are NHCEs or HCEs will have sufficient retirement benefits to be able to retire with a style of living similar to what they had when they were working. 

That's not bad.

But, as I said, the focus here is on small employers in which the management team (often one or two owners) are earning really substantial amounts of money. While the approach outlined above and in the article may be somewhat optimal, it's not unlikely that with a less optimal approach that these HCEs could retire comfortably.

Before we go on, however, why should we care about the rest of the HCEs -- those people who for the most part have annual incomes in the range of, say, $125,000 to $200,000. They are pretty well paid. What could possibly make it difficult for them?

They do pay more in taxes. It's not unlikely that they will have to fund college educations for their child(ren) as they may make a little too much for significant financial aid to be available. And, as most people aspire to a style of living in retirement at least similar to what they had when they were working, it's going to take a lot more savings for these people to make it to that retirement target. Further, in today's world, with so many employees having a 401(k) plan as their only retirement vehicle, those HCEs who would like to save as much as the financial gurus recommend are just not able to do that in a qualified plan.

Many of these same HCEs have jobs that are not physically stressful. As a result, if they choose to, and if an employer will have them, these people can work well past traditional retirement ages. One might question whether that is good for society. Is it a desirable result? (I'll leave the thinking on that to the reader.)

What can we do? 

Since most people reading this (likely all) will not be legislators, we can't change the law even if that might be a desirable result. As I have said many times, using the 401(k) as a core retirement plan prepares almost no one for retirement. To the extent that companies feel any obligation to their employees, they must do something different.

That different plan should have some particular characteristics:

• It should be affordable to the employer
• The cost of that plan should be relatively stable; that is, volatility should be limited
• The plan should offer annuity and lump sum options to participants when they reach retirement age
• The plan should be easy to understand
• The plan should be easy to administer
• The benefit should be portable since in today's modern workforce, an employee who stays with you for more than five years is the exception, not the norm
• It should benefit the rank and file well
• It should benefit the upper middle class well
• It should benefit the executive group well

Most of the retirement world doesn't seem to want you to know about it, but this plan exists today and it is specifically sanctioned by the Internal Revenue Code.

And, for all of you who are scrambling to learn more, there is plenty of information for the industry insider and the lay person alike. But, if you have more questions, you can always click here.

The Fallacy of the Participant Outcomes Mantra

I read about them virtually every day. One fund manager/defined contribution recordkeeper (vendor for purposes of the rest of this post) or another is concerned about participant outcomes. In other words, the reason that a plan sponsor should choose that particular company is because if they do, employees of that company will be prepared to retire someday.

Balderdash! Fiddlesticks!

Almost all of those vendors are preaching the same things:

• Automatic enrollment
• Automatic escalation
• Target date funds
• Retirement education

These are all great concepts, but they are not actually preparing people for retirement. Let's consider Abigail Assistant who works for Zipper Zoomers. Abby just recently started with ZZ. ZZ has hired Abby with cash compensation of $30,000 per year, based on an hourly rate of about $14.50 per hour. When she interviewed, she asked ZZ if they had medical benefits and a 401 plan (yes, she left off the "k" part). When she learned that they do, she didn't ask about details.

It turns out that ZZ does provide health benefits, but they don't pay as large a percentage of the cost as many other companies do, and their plan is a high-deductible plan. Abby and her husband Anson had already decided that 2016 would be a good year for the Assistant family to have their first child and a quick scan of her Facebook page shows that she will, in fact, be delivering Archibald Assistant later on this year. We also learn from her Facebook page that she plans to take 6 weeks off and then put dear little Archie in daycare.

Abby and Anson are going to have really high health care costs in 2016. But, when she started with ZZ, she got all this paperwork and didn't know what to do with it. She accepted her auto-enrollment at 3% of pay ($900 if she didn't take maternity leave). She also accepted her auto-escalation that will kick her up to a 4%  deferral next year. With ZZ's 2% budget for pay raises, her 2017 pay is expected to be $30,600 resulting a deferral of $1224. So her take home pay reflecting only the deductions for the 401(k) plan has only increased by $276 (600 minus 324) or less than 1%. But Abby and Anson's expenses have gone up far more than that. How will they cope?

Always resourceful, Abby and Anson have the answers. They have credit cards with hefty credit limits. That's a source of funds to pay the bills with. And, they learned that they can borrow against Abby's 401(k) account.

Okay, you all know where this is headed. The Assistants are not on the right track and unless they can get off of it, they will never be prepared for retirement. But, how does this make their vendor wrong?

Auto-enrollment and auto-escalation work for those who can afford it. It doesn't work for those who are living day to day, and sadly today, that seems to be the majority of American families.

In the Pension Protection Act of 2006, Congress claims to have intended to protected pensions. They did take some very positive steps while they were at it though by statutorily legalizing what are known as hybrid plans (cash balance, pension equity, variable annuity, etc.) and while they were at it, statutorily legalizing market return hybrid plans.

If you really want to help to prepare your employees for retirement, these are better vehicles. With modern designs and investment strategies, you can control costs. In fact, you can budget your costs better than you can in a 401(k) plan where the amount of matching contributions that you have to make is dependent on the amount that employees choose to defer.

I've seen all the illustrations and projections. Yes, Polly and Peter Professional who both came out of college and got higher paying jobs and who don't plan to have kids until they have been in the workforce for 10 or more years, bought a house and saved both inside and outside their 401(k) plans will be well-prepared, but for all the Abby and Anson's of the world, the participant outcomes will defy what the vendors are saying.

It's not pretty.

A Less Expensive Way to Provide Better Retirement Benefits -- DB

I've been pushing defined benefit (DB) plans hard lately. I still believe in them. The problem as I have noted is that regulators don't. They have done everything they can to kill them. Many are gone, many remain.

Yesterday, I happened upon a brief from Boston College's Center for Retirement Research. If you want, you can get the full brief here. In the brief, based on 23 years of data, Alicia Munnell, Jean-Pierre Aubry, and Caroline Crawford -- all from the CCRC -- demonstrate that returns on assets in DB plans actually are better than those in defined contribution (DC) plans.

When you combine this with the inability of many to defer enough to their 401(k) plans to get the full company match, you can see why many will never be able to retire well with a 401(k) as their core retirement plan.

For years, though, the cry has been that people understand 401(k) plans, but don't understand DB. But, suppose I gave you a DB plan that looked like a DC plan, provided returns for participants like a particularly well-invested DC plan, provided better downside investment return protection than a DC plan, and cost the employer less than a DC plan. What would you think?

In the Pension Protection Act of 2006 (yes, that was more than 9 years ago), Congress sanctioned what are now known as market return cash balance plans. What they are are DB plans that look like DC plans to participants, provide more and better opportunities for participants to elect annuity forms of distribution if they like, and provide the opportunity for plan sponsors to control costs and create almost a perfect investment hedge if they choose.

Suppose you had such a plan. Suppose to participants looking at their retirement website, the plan just looked like another account any day they chose to look. Suppose the costs were stable. Suppose the plan provided you as a sponsor more flexibility.

That would be nirvana in Xanadu, or something like that, wouldn't it?

Another Argument for Defined Benefit

I know, defined benefit (DB) plans are dead. Actually, while there aren't as many as there used to be, I'm going to give you one more argument why they make more sense as a retirement vehicle.

Yesterday, I wrote about managing the risk in active pension liabilities. Way back in 2010, I wrote about generally managing risks and noted that plan sponsors tend not to manage defined contribution plan risks. Most of those risks that I have considered have been financial risk. Today, I am going to focus on the intersection of financial risk and compliance risk and make a case to have a DB plan as your primary retirement vehicle rather than a 401(k) plan.

In the world of 2015, we see consolidation in many industries. We also see companies, often private, being gobbled up by private equity firms. Either of these actions will usually create a larger controlled group. And, people who focus on retirement plan compliance know that most retirement plan compliance testing must be done on a controlled group basis.

Before working to point out a solution, let me give you an example to help focus on the problem.

BPE is a big private equity firm. Their general approach to retirement plans (and other benefits) has been to ignore them and let each company do what it wants. But, as BPE get bigger, its controlled group gets more complex. Having multiple industries represented in its portfolio, BPE is ultimately the sponsor of all kinds of 401(k) plans. Their engineering company (EC) has an extremely generous 401(k) plan that matches 150% on the first 8% of pay that an employee defers. Their pork rinds company (PRC) has a 401(k) plan that matches 10 cents on the dollar on the first 2% of pay that an employee defers.

BPE never saw this as a problem. But, then one day, an inquisitive Principal (IP) at BPE was reading my blog (of all things) and came across this. He saw that BPE might have a compliance problem in its controlled group because of the disparate nature of its 401(k) plans.

Ring ring ring -- that's my phone as IP calls me. He wants to know how to fix the problem. He says that surely this problem can't be real. After an hour on the phone, we have inventoried all the plans at BPE and found that they have failed to satisfy various compliance tests (coverage under Code Section 410(b), for example) for several years.

IP has a solution though. He tells me that BPE will force some of its companies to retroactively cut the employer match in some of these more generous plans.

Bzzz!

You can't do that. In fact, if BPE were to choose to fall on its sword and approach the IRS for a negotiated retroactive solution, we would suspect that the IRS would only be receptive to increasing benefits for nonhighly compensated employees (NHCEs) in the less generous plans.

IP is not happy about this. PRC runs on very low margins, but because they make more pork rinds than any company in the world, they do throw off a lot of cash. However, increasing benefits would eliminate most of that free cash that is being generated. There is stunned silence on the other end of my phone.

While the story is fictitious, the gist of the scenario is not. I've seen this happen. By being a serial acquirer, companies run into compliance problems and with 401(k) plans not being the easiest to prove nondiscriminatory, either costs escalate or they get cut at the portfolio companies that tend to employ more higher paid individuals.

What sort of plan tests better? A few weeks ago, I wrote about some. Suppose BPE had a defined contribution looking cash balance plan. One of the nice things about these plans is that they test well. Designed properly, and proper design truly is a key, financial risk is manageable. And, with that as their primary plan, the secondary 401(k)s can be managed so that compliance there will no longer be an issue.

Unfortunately, the benefits world has been resistant to this whole concept. But, you have an open mind, don't you?

We need to talk.

How Much Weight Do You Give to Ignorance Risk?

Yesterday, I was reading the judge's opinion in Ruppert v Alliant Energy Cash Balance Pension Plan. It may not be the adjective that you are expecting me to toss out, but I was amused.

First, I backtrack. The biggest issue in the case was the use of a proper interest crediting rate and lump sum basis to satisfy "whipsaw". Whipsaw essentially was (it was repealed prospectively by the Pension Protection Act (PPA)) a required technique for calculating lump sums in cash balance pension plans which usually resulted in a lump sum distribution that was larger than the participant's cash balance.

In my opinion, the phenomenon occurred because the framers of Code sections such as 417 did not contemplate cash balance plans when Section 417(e)(3) was added to the Internal Revenue Code. Just like many other provisions of the Code, this one did not (as it couldn't have) contemplate new defined benefit plan designs. So, when new designs start appearing, nobody is sure how to handle every last issue, and some eventually get decided by the courts.

Now, I am not going to question the intelligence of our judiciary, but I'm willing to bet that you can't find me a single United States judge who is an expert in all matters ERISA, or even in all matters pension. They are not accustomed to interpreting such things and, over time, they have made some rulings that I find incredible.

So, why am I blabbing about this? I take you back to a post from December: http://johnhlowell.blogspot.com/2010/12/two-key-words.html in which I suggested that clients are not looking for a combination of home runs and strikeouts from their consultants, but rather consistent singles. In other words, give us consistent results that keep us out of trouble.

Let's assume that Alliant Energy fully considered what they believed to be the attendant risks when they implemented their cash balance plan. There's one that I am sure that they didn't consider -- ignorance risk. What's that? It's the name that I am giving to the risk of ultimate decision makers (judges) not understanding the issues. Restated, when the existing rules are not completely clear, the ultimate decision could be left up to judges and they may not get it right. If they don't, how bad could it get?

Back to the instant case. I googled the case and found this link: http://scholar.google.com/scholar_case?case=897977023238459007&q=Ruppert+v.+Alliant+Energy+Cash+Balance+Pension+Plan&hl=en&as_sdt=80002&as_vis=1

I warn you. This is going to get pretty technical. In preparing documents for plaintiffs and the court, the court commanded that Towers Watson set up databases of materials that they had produced internally or externally related to Alliant Energy and its plan. They were to be searchable on 16 keywords, and I am going to bore you with those keywords selected by the court:

1. asset liability
2. asset-liability
3. asset/liability
4. capital market assumptions
5. capital market model
6. capital market outlook
7. capital market results
8. cap link
9. cap-link
10. cap:link
11. caplink
12. forecast assumptions
13. monte carlo
14. monte-carlo
15. simulations
16. stochastic

Wow! In my opinion, none of this has anything to do with the issues at hand in the case. I could go through the list of 16 and explain each one, but that would serve no purpose here.

The issue dealt with a choice of an interest rate. Plaintiff's expert argued for an 8.45% interest crediting rate. Alliant's expert argued for 7.63%. Without having access to their expert reports or testimony, or the plan document, I am guessing that one of those experts is correct. Yet, the judge chose a rate of 8.2%. Hmm! 8.2%? It's not the mean of the two recommendations produced by the experts. It's not the number chosen by either one. Where did it come from: a dart board? A Ouija Board? Or just plain ignorance?

I vote for the last. The judge is ignorant on the matter. I can't fault her. ERISA and the Internal Revenue Code are highly specialized technical documents. Frequently, even experts with no bias cannot agree on interpretations. 

But, my point is this. Alliant and many other companies went into uncharted waters. Because they were uncharted, there were issues subject to potential litigation. Where there's potential litigation, there's going to be a judge, and certainly on ERISA and Internal Revenue Code issues, that means there is significant uncertainty.

I call it ignorance risk, and it's a big risk.

For Employers, What is a Risky Retirement Plan?

Since the late 80s, the private sector in the US has seen a gradual migration away from defined benefit pension plans (including, but to a lesser extent, hybrid plans such as cash balance plans). The most popular plan now is the 401(k) plan -- virtually every employer with more than 25 employees seems to have one and most provide an employer matching contribution.

In these times where corporate cash flow is king for many, isn't this a risky design? Matching contributions are not limitless, but most companies encourage their employees to increase their participation in the 401(k) plan, and with that increased participation comes an increase in company cost.

Some of the largest companies perform sophisticated forecasting of their 401(k) costs, but most don't. And, even those who do could be off by a material amount.

Further, 401(k) plans do not promote employee retention (unless they are extremely generous) beyond the vesting period (usually 3 years or less). In fact, in the current economy, where many employees are cash-strapped, a meaningful number have left their jobs for the primary purpose of taking a distribution from their 401(k) plan despite the adverse tax consequences. Isn't excessive turnover a significant business risk?

Where can employers turn? With the latest round of cash balance regulations, this may be the much less risky answer. Plan sponsors can now offer a rate of return equal to the rate of return on the trust's investments (or a  fraction thereof) with a lifetime floor. So, to the extent that a plan invests in a well-diversified relatively low-volatility portfolio and properly hedges against interest rate deviations, required cash flow may be more predictable than in a 401(k) plan. And, as long as you are willing to cover your low-paid, there are no refunds that must be given to your high-paid.

No, cash balance plans are not nirvana, but with the recently proposed regulations, they may now be the closest thing in a qualified retirement plan that the US private sector has to offer.