Plan Sponsor Interest in Pooled Employer Plans Has Increased

The largest small employers may be the most interested.

 

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More than half of smaller employers say they are interested in learning more about PEPs, according to new data from the LIMRA Secure Retirement Institute.

Deb Dupont, assistant vice president, worksite retirement at the Secure Retirement Institute, says employers that are already offering retirement benefits are showing more interest in PEPs. 

“Ironically, when there’s already a plan in place, we see smaller employers having a higher interest in PEPs than those employers who don’t already have one. But interest in starting a plan is lukewarm at best among non-plan sponsor employers to begin with. The small employers who do have a plan—presumably a standalone—may be drawn to streamlined administration and the lure of lower costs and liability. It remains to be seen whether SECURE 2.0’s attempts at easing the burden for small employers in offering a plan will spike more interest in both standalones and PEPs,” says Dupont referencing pending federal retirement reform legislation.

Overall, interest has increased from Q4 2020, explains Terrance Power, president of pooled plan provider The Platinum 401k, who is not affiliated with the research. 

“[W]e have seen the interest in pooled employer plans from plan sponsors increase significantly,” he says.

Pooled employer plans were created by the 2019 Setting Every Community Up for Retirement Act to allow unrelated employers to convene to participate in a single 401(k) plan sponsored by a registered pooled plan provider. The goal of provisions in the bill was to encourage employers that didn’t provide retirement plans to their employees to offer one.

Plan sponsors and retirement plan advisers with clients offering an existing retirement benefit may have wanted to understand how PEPs worked in practice and how PEPs could benefit the plan sponsor and retirement plan participants before joining, according to Power. 

“These same plan sponsors are reviewing the options available to them to determine which PEP would best suit their company’s plan and participants,” he says.

In 2020, a handful of PEPs were established, Power explained, and the number has increased since. He pegged the number of PEPs established—based on Department of Labor registration site figures—at 233.

“The sweet spot for employers in most pooled employer plans appears to be plan sponsors who are subject to an annual plan audit as part of their Form 5500 filing,” says Power. “There can be a significant cost savings available to the company as well as a dramatic fiduciary liability offload. Our typical adopting employer has around 150 employees and $5 million in current plan assets,” although some larger companies with plan assets approaching $100 million are also showing interest.

PEP-ing the Market

The SRI researchers asked plan sponsors to rate their interest in PEPs. Among the largest small employers—with 50-99 employees—52% are somewhat interested and 38% are very interested in PEPs, the research shows. For employers with 20-49 employees, 52% are somewhat interested and 34% are very interested.

Prior to the SECURE Act, four in 10 employers with fewer than 100 employees offered retirement benefits, the data show.

“While small employers without current retirement plans are interested in exploring PEPs, few expressed interest in adding them,” says SRI’s Dupont. 

Among the smallest employers, with two to nine employees, 44% are somewhat interested and 14% are very interested, while 47% of employers with 10-19 employees are somewhat interested and 33% are very interested.

LIMRA found that the reasons for lack of interest are consistent across employer sizes up to 99 employees. Small employers that have avoided moving to a PEP have expressed concerns about lower levels of support for the companies participating in the PEP (42%) or lower levels of service for employees (39%). Almost 40% cited wanting to retain control of plan design decisions, and 33% of employers are not convinced that joining a PEP would lower plan costs.

The top reasons for small plan sponsors’ interest in PEPs were cost (52%), reduced administrative responsibility (35%) and reduced plan sponsor legal liability (32%).

“Lower cost is the most compelling reason employers would choose a PEP, but other reasons may combine to create a powerful value proposition for this new construct,” says Dupont. “The attraction of a PEP is similar, whether employers currently do or do not have a DC plan in place. For both, cost is most compelling, but reducing administrative responsibilities also has a stronger appeal for employers that currently manage administrative responsibilities of an existing plan.”

While joining a PEP does allow shared fiduciary responsibility, joining a PEP does not completely absolve plan sponsors of the fiduciary duty to retirement plan participants. “One important thing to consider is how much fiduciary responsibility does the specific PEP that they’re looking at allow them to offload,” explains Catherine Reilly, director of retirement solutions at Smart, a global retirement technology business. 

One reason small business plan sponsors are pondering PEPs is because offering a retirement plan can be a recruitment and retention tool, especially as the labor market has changed since the start of the pandemic. Due to lower unemployment and increased job growth, 67% of small business owners are currently experiencing a staffing shortage, according to a March 2022 survey from the National Federation of Independent Businesses. And according to Lincoln Financial Group’s Small Business Owner Survey, 80% of small business owners view employee benefits as a top priority because of the pandemic, 93% have reevaluated their strategy and plan to make changes due to COVID-19 and 28% of owners have bolstered benefits—including retirement plans.

November SEC Advertising Rule Compliance Date Fast Approaching

Experts with the Wagner Law Group say complying with the marketing rule can be a significant process, and firms need to make sure they are on track for full compliance by early November.

In December 2020, the U.S. Securities and Exchange Commission voted to finalize key reforms under the Investment Advisers Act to modernize the rules that govern investment adviser advertisements and payments to solicitors.

The finalized amendments created a single rule to replace the previously distinct advertising and cash solicitation rules. According to the SEC’s leadership, the final rule is designed to more “comprehensively and efficiently” regulate investment advisers’ marketing communications. They say the reforms will allow advisers to provide investors with useful information as they choose investment advisers and advisory services, subject to conditions that are reasonably designed to prevent fraud.

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With its vote to finalize the new marketing standards, the SEC set a final compliance date of Nov. 4, 2022. Since then, in anticipation of the compliance date, the SEC has withdrawn or modified a significant number of No-Action Letters published under the previous advertising rule and the cash solicitation rule. 

In a new white paper assessing the state of the evolving adviser advertising landscape, Wagner Law Group Attorneys Seth Gadreau and Stephen Wilkes say the SEC’s actions represent a “substantial overhaul” of the now-defunct advertising and cash solicitation rules. Based on a firm’s current practices, they warn, compliance with the marketing rule can be a significant process. If firms have not done so already, they need to make sure they are on track for full compliance by Nov. 4.

“The technology used for communications has advanced, the expectations of investors seeking advisory services have changed and the profiles of the investment advisory industry have diversified,” the attorneys write. “The new marketing rule recognizes these changes and the SEC’s experience administering the current rules.”

As the Wagner attorneys explain, the framework taking effect in early November will expand the scope of communications that are considered “advertisements” for purposes of the rule. In this sense, while the rule permits more types of advertisements—including testimonials, endorsements, third-party ratings and hypothetical performance—these new strategies are subject to the marketing rule’s new principles-based regime. In other words, the forthcoming framework is far from a marketing free-for-all, and it still demands significant planning and diligence on the part of registered firms.

The SEC also instituted related amendments to Form ADV, the investment adviser registration form, and Rule 204-2, the books and records rule. The Wagner attorneys point out that the marketing regulation is the first significant change to these rules and has important implications for all investment advisers—particularly with respect to presentation of performance and solicitation activities.

The Wagner white paper explains that, under the marketing rule, the definition of “advertisement” now has two prongs. The first includes any direct or indirect communication an investment adviser makes to more than one person—or to one or more persons if the communication includes hypothetical performance—that offers the adviser’s investment advisory services regarding securities to prospective clients or investors in a private fund advised by the investment adviser. This same prong also defines an advertisement as any offer of new investment advisory services regarding securities to current clients or investors in a private fund advised by the investment adviser.

The second prong of the definition, as described in the white paper, generally includes any testimonial or endorsement for which an adviser provides compensation. Communications directed to only one person are included, the attorneys point out, as are oral communications. Compensation includes cash and non-cash compensation paid directly or indirectly by the adviser.

“A key to the SEC’s view of compensation is whether it is the basis of some form of quid pro quo for the testimonial or endorsement,” the attorneys say. “Attendance at training and education meetings, including company-sponsored meetings such as annual conferences, is not considered compensation if it is not provided in exchange for the endorsement or testimonial. The SEC declined to offer a bright-line test.”

Notably, for purposes of the marketing rule, the new advertisement definition does not differentiate between retail and non-retail investor communications and applies a uniform standard for both institutions and individuals.

The white paper points out that the marketing rule permits the use of testimonials and endorsements, subject to compliance with multiple conditions. The first pertains to disclosure: an adviser must clearly and prominently disclose, or reasonably believe that the person giving the testimonial or endorsement discloses, whether the “promoter” giving the testimonial or endorsement is a client of the investment adviser. Additionally, the adviser must disclose whether the promoter is being compensated, including both cash and non-cash compensation.

“Further disclosures are required for any material conflicts of interest on the part of the person giving the testimonial or endorsement resulting from the compensation arrangement and/or the adviser’s relationship with the promoter,” the attorneys warn.

Another condition requires that investment advisers enter into written agreements with promoters in connection with the use of a testimonial or endorsement. Investment advisers that use testimonials or endorsements in advertisements must also have policies and procedures to ensure compliance with the new marketing rule, the Wagner attorneys note.

Finally, an adviser will not be able to directly or indirectly compensate a person for a testimonial or endorsement if the adviser knows, or in the exercise of reasonable care should know, that the person giving the testimonial or endorsement is ineligible under the marketing rule at that time. As the attorneys explain, certain “bad actors,” as defined under Rule 506 of Regulation D, and other “ineligible persons” are prohibited from acting as promoters.

The Wagner attorneys emphasize that advisers will need to analyze the particular facts and circumstances of each advertisement when applying the general prohibitions of the marketing rule—including the nature of the audience to which the advertisement is directed. They point out that the SEC has noted the requirements’ similarity to FINRA Rule 2210’s general standards regarding communication with the public.

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