October Three

January 1 of next year, I will be joining October Three, a concept-driven, results-oriented consulting firm. October Three brings the solutions that will shape the most successful retirement solutions now and in the future.

The firm consists of many of the innovative consultants from the firm formerly known as Chicago Consulting Actuaries and CCA Strategies.

I couldn't be happier than to be joining this group of smart, creative, and innovative consultants. Their work is of the highest quality and can bring your company, its plans, and its employees, solutions to any and all of your retirement problems. You won't get the same solution that some other company gets because that's the right one for them. Instead, you will get the ideal solution for your company and your employees to meet your goals.

Contact me now to start the process.

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.

Managing the Risk in Active Pension Liabilities

If you work with defined benefit (DB) pension plans at all, or if you happen to be among those responsible for them at a company that still sponsors an ongoing DB plan, you know that de-risking has been all the rage in recent years. And, this is not to say that this is not without good reason. With the inherent volatility in cash flow and accounting expense that has been added to the DB world by what some (including me) would consider poorly conceived funding and accounting rules, risk mitigation is often critically important.

So, let's consider what have been the trends in de-risking. There have been a mass of so-called lump sum windows in which former employees have been offered one-time opportunity to take a single sum distribution of the value of their remaining benefits thereby removing those liabilities from the plan's 'balance sheet' and thus eliminating the company's future liabilities with respect to them. And, there has been lots of liability driven investing (LDI). That is, companies look to invest assets in fixed income instruments of durations similar to the liabilities in the plan. By doing this, liabilities in the plan tend to move roughly in lockstep with the underlying assets intended to support those liabilities.

All this is great, especially for well-funded plans, but how about all the rest of those plans? And, these strategies tend to look at the liabilities that currently exist. How about the liabilities that will exist in the future (we used to consider those in actuarial valuations, but the law changes made them irrelevant in the annual valuations)? What do I mean by that? Consider an example.

The XYZ Pension Plan currently has its funding target (liability for accrued benefits). We can split that out among three groups of participants, two of which are composed of former employees. Suppose they are broken out as follows:

Retired participants: 100,000,000
Terminated Vested participants (former employees who are not yet in pay status, but are entitled to a benefit in the future): 30,000,000
Active participants: 70,000,000

for a total funding target of $200,000,000.

What do we know about the liabilities that compose this funding target? We know that the amount attributable to current retirees will generally decrease because for each year that a retiree lives, there are 12 months fewer of benefit payments that the retiree will receive in the future. This might tend to imply that this group represents a diminishing risk.

We know that the terminated vested group will become retirees. Generally, these are former employees with smaller benefits (they didn't work for the company until a retirement age). In the usual profile, they represent a far smaller liability than do retirees or actives. For a given vested term, the liability with respect to their benefit will generally increase as they approach retirement and then decrease. Lump sum windows were designed to target this group and have been quite successful. But, because their accrued benefits, and therefore attendant liabilities are smaller, the effect of having done this has not been as significant as it would be with a group of active employees.

The active employees currently accruing benefits are the most important group to de-risk. Why is this? There are several reasons:

• In our example, and typically, their accrued benefits represent a meaningful liability to the plan and plan sponsor.
• With each year that an active employee remains with the company, they are one year closer to retirement meaning that the discounting period until retirement has shortened.
• In an active plan, these employees continue to accrue benefits (more on this to follow).

Yes, active employees continue to accrue benefits. Suppose we consider a concept that used to be paramount to actuarial valuations of DB plans -- the actuarial present value of projected benefits under the plan (PVB). This is the actuarially determined amount that if it sat in a pool of assets today would be sufficient to eventually fund the benefits of that individual. 

For retirees and vested terms, the PVB and the accrued liability or funding target or accumulated benefit obligation (ABO in accounting parlance) are, save differences in actuarial assumptions, the same as each other and the same as the PVB.

For active participants, they are not. In fact, for a mid-career person, the PVB may be more than twice as large as the liabilities we are consider. And, if we are de-risking, isn't it really the eventual benefit liability that needs to be de-risked? 

If you agree, you're correct, and if you're a plan sponsor, we need to talk. 

If you disagree, you're likely not correct, and if you're a plan sponsor, we need to talk.

There is a really easy approach to this that many companies have taken and that is to freeze benefit accruals under the plan. But, not everyone wants to do that. Some companies actually philosophically like the concept of DB plans. But, the funding and accounting rules have made it more difficult to get comfortable with sponsoring them.

Suppose I told you that you could mitigate the risk in the active PVB. And, suppose I told you that you could do that without freezing accruals. 

You'd be interested, wouldn't you?

Let's talk. You won't regret it. Here is one way.

How The SEC Got DB Plans All Wrong

Yesterday, I wrote that the SEC contributed to the downfall of defined benefit (DB) plans. I promised to explain in more detail in a future post.

Well, the future is now (I wonder if anyone else ever used that line before).

As readers of this blog well know, for about 10 years, issuers of proxies under the auspices of the Securities and Exchange Commission have been required to disclose compensation for their five highest paid employees. This compensation has been disclosed in a little beast known as the Summary Compensation Table and in more detail in several other places.

Some of the disclosure makes sense. For example, the salary that an individual actually receives is what it is. There is no disputing that. Similarly, the matching contribution that an individual receives in her 401(k) plan or in the nonqualified analog is what it is.

Some of the disclosure makes less sense. Fingers point to the defined benefit disclosures.

What the rules ask be disclosed as compensation with respect to a defined benefit plan (qualified or nonqualified) is the increase, if any, in the actuarial present value of accrued benefits from one measurement date to the next. That seems simple and reasonable enough on its face, but that is exactly where, how, and why the SEC went wrong.

Let's make up some Illustrative numbers for Well Paid Executive who we will refer to as WPE.

• Total pension accrued benefit as of 12/31/2014: $1,000,000
• Total pension accrued benefit as of 12/31/2015: $1,100,000
• Actuarial present value "factor" as of 12/31/2014 using 2014 discount rates and 2014 mortality table: 11.00
• Actuarial present value "factor" as of 12/31/2015 using 2014 discount rates and 2014 mortality table: 11.50
• Actuarial present value "factor" as of 12/31/2015 using 2015 discount rates and 2015 mortality table: 12.50

So, the actuarial present value of WPE's defined benefit as of 12/31/2014 was 11*1,000,000 or $11,000,000. 

The actuarial present value of WPE's defined benefit as of 12/31/2015 was 12.50*1,100,000 or $13,750,000.

The compensation due to defined benefits that must be reported for WPE was 13,750,000 - 11,000,000 or $2,750,000.

But, this is not an apples to apples comparison. Really Big Company (RBC) did not actually compensate WPE for the fact that interest rates on bonds declined during the year. RBC also did not actually compensate WPE for the fact that the Society of Actuaries had finished a new mortality study. 

The actuarial present value of WPE's defined benefit as of 12/31/2015 using 2014 actuarial assumptions was 11.50*1,100,000 or $12,650,000. This means that the increase, on an apples to apples basis, in the actuarial present value of WPE's defined benefits was 12,650,000 - 11,000,000 or 1,650,000. The other 1,100,000 was due to changes in actuarial assumptions and DOES NOT REFLECT THE AMOUNT THAT RBC PAID WPE DURING 2015.

The SEC's methodology has thrown proxy disclosures out of whack. In light of Dodd-Frank and its Say-on-Pay requirement and Pay Ratio Disclosure requirement, the SEC methodology puts an inappropriate burden on companies sponsoring DB plans. For some, this may signal a reason for them to exit that space ... for all the wrong reasons.

Who Put the Dagger in the Heart of Defined Benefit

What happened to defined benefit (DB) plans? We, at least those of us who can remember those times, saw a rise of them from the passage of ERISA in 1974 until the Tax Reform Act of 1986 (TRA86). They were viewed as an affordable way for companies to provide an excellent retirement benefit to their employees, especially ones that showed loyalty to those companies. In fact, most current retirees who have been retired for at least 10 years retired in part because they had those DB plans. And, companies that sponsored them and did so responsibly did not go out of business because of them.

Unfortunately, the number of DB plans has dwindled significantly. There was not a single killer, though. The list is long. It includes:

• Congress
• The Pension Benefit Guaranty Corporation (PBGC)
• The global economy
• The e-commerce economy
• The temporary worker for hire economy
• The Financial Accounting Standards Board (FASB)
• The Securities and Exchange Commission (SEC)

Congress

What did Congress do that was so bad? Frankly, that crew of 535 individuals that changes in makeup from time to time did a lot. Between them, they rarely have anyone among them that knows much about DB plans. And, today, because their staffers who give them what they think is excellent guidance tend to be young, the advice that they actually get is colored by propaganda of the last 30 years or so. 

Nevertheless, Congress passed laws ... lots of them. And, lots of them included DB provision and each one was worse than the last. More than anything, though, because Congress intermingled retirement policy with tax policy so intimately, it eliminated plan sponsors' ability to fund DB plans responsibly.

Back in 1987, just one year after passage of TRA86, Congress, in its infinite wisdom, decided that the status quo, having existed for about a year, needed change. Included in that necessary change was limiting the amount that companies could contribute (and deduct on their tax returns) to DB plans. We were switched from a regime that was sound actuarially to one that never was and never will be.

Think about. Suppose you agree to pay someone an amount in the future. Shouldn't you be setting aside money regularly to pay for those future benefits? Of course, you should. And, DB funding used to be based on funding methods that allocated costs intelligently to the past, present, and future. But OBRA 87 began the path to dismantling those methods as Congress thought it better that DB deductions would be limited so that it could spend more money elsewhere. Thus was limited the ability of companies to responsibly fund their plans. And, as a result, as interest rates fell and there were a few significant downturns in equity markets, DB plans became [often] severely underfunded. Finally, the way these regimes worked, companies had no room to make deductible pension contributions in years that they could afford to, but were required to make large contributions in years that they could not afford them.

PBGC

For those that don't know, the PBGC is a corporation, run under the auspices of the Department of Labor, that was established by ERISA to protect the pensions of participants in corporate DB plans. The PBGC was and is funded by premiums paid by plan sponsors. 

While the purpose of the PBGC has always been to protect pensions, it has behaved over the last 30 years or so as if pensions should be in place to protect the PBGC. To the PBGC's policymakers, nothing would be a greater tragedy than the PBGC projecting that it would run out of money.

So, the PBGC lobbied Congress. And, with that lobbying, the PBGC got increased ability to intervene in business and in corporate transactions. It got increased premiums. It got even high premiums for underfunded DB plans, often ones to which the sponsors wanted to make contributions when business was good, but were precluded from doing so.

What happened?

The PBGC tried to commit suicide.

You see, as the PBGC helped to make DB plans less attractive for employers, employers froze entry to or terminated DB plans. This meant that there were fewer participants in DB plans on whom premiums were paid to the PBGC. Companies that couldn't terminate DB plans were the ones that had plans that were so underfunded that they didn't have enough money to fully fund them. Often, the PBGC had to assume responsibility for those plans. So, as the PBGC incurred more liabilities, it also got less premium revenue. It's awfully tough to run  a business that way.

Various Economies

As the US economy has become more global, more electronic, and more temporary, DB plans have lost some of their appeal, When a company was competing primarily with other US companies, providing excellent retirement benefits was important to attracting and retaining good employees. But, non-US companies didn't have to do that and as competition from offshore became fierce, retirement benefits became less of an issue.

And, as employers began to show less loyalty to their employees and were less worried about retaining them, retirement benefits lost some of their appeal. The prophecy was somewhat self-fulfilling; as retirement benefits lost some appeal, they continued to lose appeal.

FASB

Accounting for DB plans use to be more cash based than accrual based. In 1985, the FASB gave us Standards Number 87 and 88 that instructed companies how to account for DB plans. Previous to then, companies used Accounting Principles Bulletin (APB) 8, under which most companies expensed as part of P&L their cash contributions. The FASB saw this as incorrect.

So, we moved from a regime under which pension expense was somewhat controllable (a company by building up a surplus in good times could contribute less in bad times and thereby have some control over their pension expense) to one that had components that became quite volatile as the economy did. CFOs abhor volatility and thus had one more reason to not want DB plans.

SEC

The SEC didn't get deeply involved in pensions until recent times. But, when they did, they got them all wrong.

Primarily, the SEC's involvement with pensions has been in corporate proxies. For the last 10 or more years, companies have been required to provide as part of their proxy materials a table of Summary Annual Compensation for (generally) their top five paid employees. Included in compensation is the increase in actuarial present value from one year to the next of defined benefit pensions both qualified and nonqualified. 

Often times, that increase is largely due to a decrease in underlying discount rates or more recently, to a change in mortality assumptions. Yes, according to SEC rules, when the Society of Actuaries publishes a new, more up-to-date mortality table, that represents compensation to executives. And, of course, the media loves to look at those numbers as if someone had written checks for those amounts in those years to those executives. And, some investors look at those numbers and want to use them to explain how the companies in which they invest overpay their executives. (This is not to say that they don't overpay their executives, but when a large piece of the overpayment is simply due to year over year changes in actuarial assumptions, the logic is bad.) 

There are better ways. Actuaries understand them. And, actuaries, in some cases, have tried to explain them to the SEC. But, the SEC has chosen to listen more to attorneys, accountants, lobbyists, and unions. They carry more sway and are more emotional about this issue, but generally speaking, they don't get it.

I'll write about a better way in another post soon.

But, in the meantime, now you know where the dagger came from. DB plans use to allow people to look forward to retirement. For most, they don't anymore.

Identifying the Wrong Vendor

When we seek a consultant or any sort of vendor for that matter, there are signs that we have identified a good one. Most of us can recognize some of those signs, but they don't always jump off the page at us.

Often, just as important is the ability to recognize the wrong vendor or consultant. In fact, personally, I might rather miss out on the most qualified so long as I know I am not getting someone who is not qualified at all.

I could highlight some things to look for or even make a list, but I'm going to take a different approach. Everyone seems to like illustrative stories. So, let me give you one that I recently encountered where I'll change the names and fact patterns a bit to protect the innocent ... and the guilty.

A mid-sized company (let's call them National Widget or NW) issued a request for proposal (RFP) for assistance with developing the components of an employment agreement for a potential new CEO. As is good practice, they issued the RFP to five prospective consultants (five is not necessarily THE right number, but it is certainly in a range of reasonable) asking among other things for

• Staffing
• Qualifications
• Experience
• Timing
• Fees
• Project methodology

A key place that National Widget went wrong is that the three people making the decision on choosing a vendor didn't really have experience in this area. Of the five companies that received the RFP (all responded), three were name-brand firms, one was a niche firm specializing in consulting on executive issues, and one was a firm (WCDA (I'll explain the acronym later) that had done good work for NW on a health insurance related project.

I thought that three of the proposals (two from the name-brand firms and one from the niche firm) were good enough that if I were choosing, I would have been comfortable with them. Let's consider the other one.

Big Firm B (BFB) came in with the lowest fee quote. In fact, it was the lowest by a wide margin. The proposed staffing on the assignment consisted of two relatively junior consultants. Their bios pitched that they had MBAs from top-5 programs. When the proposal discussed experience, it didn't mention any assignments related to CEOs. It also didn't reference any assignments related to employment agreements. And, the proposal was filled with fancy graphics laying out the project methodology and timeline. What is was missing though was anything that would have convinced me that the two young rising stars actually understood the assignment. Fortunately, NW chose not to engage BFB. 

As I see it, there were a few red flags here:

• If there is one fee quote that is far below the rest, consider whether the people preparing that quote understand the entire assignment.
• Why are they quoting that low? Are they overly tightly scoping and then going to nickel and dime you on extras to make it back?
• When a proposal that doesn't need pictures and graphics to explain itself is filled with them, what are the bidders using the visuals to hide?
• Does the staffing chosen seem to fit the proposed assignment?

Now let's consider the WCDA proposal. 

It was delivered by the project lead from the health insurance project. It spent two full pages telling NW about all the money that WCDA had saved NW on their health care costs. It played up the fact that WCDA has more than 50 employees who have passed their FINRA Series 7 exam. We learned that they also have 11 employees with PhDs. Further, of the three people assigned to this project, two would be chosen from among that group with PhDs (I'm not knocking attainment of a PhD; that's a tremendous achievement.). Finally, the proposal from WCDA pointed out many of the different types of projects that their firm had completed in the last twelve months including a business valuation on behalf of a private equity firm, development of a new e-commerce platform for a new fantasy football oriented company, and a conjoint analysis of employee preferences related to volunteerism opportunities. 

Note the red flags:

• Most of what was in the WCDA proposal was unrelated to this assignment.
• WCDA highlighted credentials and qualifications that were irrelevant to development of an employment agreement.
• WCDA led with a reminder that it had helped to save NW money in an unrelated area.

The bad news was that NW hired WCDA. What I didn't tell you was that the closing sentence of WCDA's proposal was, " For NW, We Can Do Anything."

Well, WCDA may think they can do anything, but the fact is that they didn't understand this assignment. In the recommendations that they delivered, WCDA spent a full page explaining that they are 

• Registered Investment Advisors
• Chartered Arbitrators
• Fellows of the World Coffee Drinkers Association (there actually is a World Coffee Drinkers Association, but I chose it for the WCDA acronym)

WCDA's recommendation report was long. It needed to be to justify the level of fees. It contained lots of filler, or fluff, if you prefer. What is was short on was substance. That shouldn't come as a surprise, though, because WCDA's proposal was also short on substance.

The end result was that National Widget couldn't use the work that WCDA had done for them. They had to go out and pay a second firm to do the work properly. The red flags were waving right in National Widget's face, but they chose not to see them.

Don't make the same mistake. Engage qualified people who understand what you are looking for.

CFO Priorities and Benefits and Compensation

CFO magazine did their annual survey of the priorities of chief financial officers recently. I read their article summarizing the findings from the survey and considered what this might mean for benefits and compensation.

Before I go on to my main topic, however, I need to bring up a few of the issues that I found near the bottom of the article. Three priorities that the article highlighted were written communication, networking with peers and presenting to large groups. Frankly, these are not just CFO priorities; they should be priorities for every professional in our 2015 world, and I was absolutely thrilled to see written communication in the list.

Returning to the main points of the article, I point out some of the top priorities that are more day-to-day for CFOs.

• Precision and efficiency in cash forecasting
• Budgeting
• Balanced scorecards
• Margins
• Risk management
• Performance management

Additionally, and in many cases perhaps more important, but less relevant for this blog is cybersecurity.

Let's also consider what some of the main elements of traditional benefits and compensation packages look like (with some grouping at my discretion).

• Health and wellness benefits
• Retirement benefits
• Other traditional welfare benefits
• Feelgood benefits
• Base pay
• Short-term incentives (bonus)
• Long-term incentives (often equity)

Health benefits are now essentially a requirement. Either you provide them or pay a fine under the Affordable Care Act (ACA). But, companies have lots of techniques that they can use to control costs. Popular today are high-deductible health plans (HDHP) where oftentimes, companies contribute fixed amounts to health savings accounts (HSAs) to help employees pay for costs up to those deductibles. Among the major advantages of these designs are that companies do a much better job of locking in their costs. In other words, more costs are known and far fewer costs are variable or unknown. 

On the subject of retirement benefits, I'm going to give you a shocker. In matching those CFO priorities, the single worst sort of retirement plan that a company can sponsor is a traditional 401(k) plan with a company match. That's right -- it's the worst! Why is that? In a 401(k) plan, the amount of money that a company spends is almost entirely dependent upon employee behavior. If you, as an employer, communicate the value of the plan, employees defer more and that costs you more. Most companies budget a number for their cash outlay for the 401(k) plan. Very few, in my experience, look at potential variability. One that does and that I worked with on this a number of years ago, estimates that between best case and worst case, that the difference in their cash outlay could be in the range of several hundred million dollars. That is a lot of money.

So, what is better?

Believe it or not, I can come up with lots of rationales (much beyond the scope of this post) for why having a defined benefit plan as a company's primary retirement vehicle is superior to using a 401(k) plan. Understand, I'm not talking about just any DB plan. But, the Pension Protection Act of 2006 (PPA) opened the door for new types of DB plans that either were not expressly permitted previously or, in other cases, that were generally not considered feasible. Think about a cash balance plan using a market return interest crediting rate with plan investments selected to properly hedge fluctuation. Cash flow becomes predictable. Volatility generally goes away. Budgeting is simple. The plan can be designed to not negatively affect margins.

I may write more in a future post, but for now, suffice it to say that this design that has not yet caught on in the corporate world needs some real consideration.

How about compensation? 

Base pay is the easiest to budget for. If you do have a budget and commit to not spending outside of that budget, base pay is pretty simple to keep within your goals. 

Incentive compensation is trickier. While many organizations have "bonus pools", they also tend to have formulaic incentive programs. So, what happens when the some of the formulaic incentives exceeds the amount in the bonus pool? Either you blow your budget or you make people particularly unhappy. There is little that will cause a top performer to leave your company faster than having her calculate that her bonus is to be some particular number of dollars only to learn that it got cut back to 70% of that number because the company didn't budget properly.

Perhaps it is better to assign an individual a number of bonus credits based on their performance and then compare their number of credits to the total number of credits allocated to determine a ratio of the total bonus pool awarded to that individual. After all, isn't the performance of the company roughly equal to the sum pf the performances of individuals and teams? And, if the company has a bad year, isn't it impossible that every individual and team exceeded expectations? Be honest, you know that has happened at lots of companies and the companies don't know what to do or how to explain it.

There is lots more to be said, but I want to keep it brief for now. If you have questions on some of the specifics, please post here or on Twitter or LinkedIn in reply to my post or tweet. And, if you have one of these areas on which you'd like to see me expand in a future post, let me know about that as well.