Reducing Regulatory Burden

Transcription

1 Current Funding Issues for Multiemployer Plans 2013 AMERICAN BAR ASSOCIATION, EMPLOYEE BENEFITS COMMITTEE, MIDWINTER MEETING February 21, 2013 Charleston, SC Bruce Perlin Manager, Multiemployer Program Division The opinions of Mr. Perlin are his alone and do not represent the views of the PBGC Reducing Regulatory Burden In response to Executive Order on Improving Regulation and Regulatory Review, PBGC issued its plan to review its regulations to ease administrative burden, simplify filings, and provide relief for small businesses and plans Specifically pertaining to Multiemployer Program: Annual valuation requirement for terminated but not insolvent multiemployer plans Withdrawal liability rules Notices of insolvency and of insolvency benefit level Filing requirements for mergers of multiemployer plans 2 1

2 Alternative Allocation Rule Alternative allocation rules are for withdrawal liability Splitting of plans Unfunded Vested Benefits (UVBs) between new employers and old employers new employer UVBs: liabilities associated with service with employers that first participate in the plan after a certain date less assets attributed to the new employers old employer UVBs: the plan s total UVBs less the UVBs in the new employer pool to assure 100% allocation of UVBs Separate pools are only for purposes of withdrawal liability; The plan continues to have a single funding standard account 3 Allocation Rule (cont d) Some plans alternative methods uses direct attribution for determining an employer s allocable share in the new employer pool while others chose a rolling 5 method Several plans have expanded the definition of new employers to include old employers that have paid their withdrawal liability PBGC approval is required for most alternative allocation method; Exceptions are enumerated in 29 CFR 4211 PBGC approval only applicable to an employer s initial withdrawal liability; Mass withdrawal liability must still be consistent with PBGC regulations 4 2

3 Partition ERISA Sec. 4233: PBGC has the discretion to order the partition of a multiemployer plan if certain requirements are met PBGC must determine: 1. A substantial reduction in the amount of aggregate contributions under the plan has resulted or will result from employer bankruptcies 2. The plan is likely to become insolvent 3. Contributions will have to be increased significantly in reorganization to meet minimum contribution requirements 4. Partition will significantly reduce the likelihood of plan insolvency Order of partition can transfer no more than the nonforfeitable benefits directly attributable to service with a bankrupt employer 5 Terminated Plan Review Mission: To identify plans with unusually large administrative expenses, and to work to reduce those costs to forestall insolvency Work jointly with DOL and IRS Ensure Plans understand post termination duties Goal: To help participants receive their benefits at the plan level for as long as possible 6 3

4 Technical Update 10 3 Clarification Technical Update 10 3 provides a simplified method for applying ERISA 305(e)(8) (disregarding any reduction in adjustable benefits in withdrawal liability determinations) Under this simplified method, a plan first determines an employer s withdrawal liability by determining its share of unfunded vested benefits under 4211, and adjusting under Then the plan adds the employer s share of the Affected Benefits (the unamortized portion of the reduced adjustable benefits) This method is illustrated in the example in Tech Update 10 3 that states a plan first determines an employer s withdrawal liability (including the effect of the de minimis rule, if any) and then adds its share of the Affected Benefits 7 PBGC Multiemployer Program Thank You 8 4

5 (Mostly) Funding and (A Few) Compliance Issues for Multiemployer Plans Sharon Goodman, Slevin & Hart, Washington, DC Patrick Spangler, Vedder Price, Chicago, IL PPA BASICS FOR MULTIEMPLOYER PLANS Section 305 of ERISA/Section 436 of Code. Three Separate Categories of Financial Status. Endangered/Seriously Endangered (Yellow Zone) Critical (Red Zone) Other Plans (Green Zone) Multiemployer Plans In Yellow or Red Zone Must Develop Alternative Schedules Provided to Bargaining Parties That Improve Financial Status. Bargaining Parties Negotiate Over Schedules. 10 5

6 ENDANGERED/SERIOUSLY ENDANGERED PLANS Funding Improvement Plan Trustees must adopt a Funding Improvement Plan ( FIP ) by 330 th day of Plan Year. During funding improvement period, plan must reduce its percentage of underfunding by 1/3 for endangered plans (1/5 for seriously endangered plans with funded percentage of 70% or less). 11 ENDANGERED/SERIOUSLY ENDANGERED PLANS Funding Improvement Period Funding improvement period is 10 year period beginning on 1 st plan year following earlier of (1) 2 nd anniversary of adoption of FIP, or (2) expiration of CBAs in effect as of date of initial certification covering 75% of active participants. Seriously endangered plans are subject to 15 year funding improvement period. 12 6

7 FUNDING IMPROVEMENT PLAN Alternative schedules containing benefits and contribution structures that enable plan to meet benchmarks by end of Funding Improvement Period. One schedule must include maximum allowable reductions in future benefit accruals necessary for plan to meet required benchmarks and assumes contribution increases only after reductions. This is the default schedule. One schedule must include contribution increase necessary for plan to meet required benchmarks assuming future benefit accruals not reduced. Any other alternative schedules. 13 CRITICAL OR RED ZONE STATUS PLANS Rehabilitation Plan In 1 st year in critical status, Trustees must adopt Rehabilitation Plan ( RP ) by 330 th day of plan year. Must update RP each plan year. Rehabilitation period is 10 year period (13 with WRERA extension) beginning on 1 st plan year following earlier of (1) second anniversary of adoption of 1 st Rehabilitation Plan, or (2) expiration of CBAs in effect as of date of initial certification covering 75% of active participants. 14 7

8 WHAT IS THE REHABILITATION PLAN? One schedule is default schedule: shall assume that there are no increases in contributions under the plan other than increases necessary to emerge from critical status after future benefit accruals and other benefits (other than benefits the reduction or elimination of which are not permitted under section 411 (d)(6)) have been reduced to the maximum extent permitted by law. Reduction in future accruals under default schedule may not be below: (1) 1% of contributions or (2) current accrual rate, if lower. Bargaining parties can negotiate rates lower than 1%. Trustees can adopt other schedules with other benefit/contribution scenarios. 15 WHAT IS THE REHABILITATION PLAN? Trustees may not reduce accrued benefits payable at normal retirement age. Adjustable Benefits that can be reduced include: Post Retirement Death Benefits 60 Month Guarantees Early Retirement Benefits and Retirement Subsidies Disability Benefits Benefit Options Except Qualified Joint and Survivor Annuity Benefit Increases Adopted or Effective Less Than 60 Months Notice of reduction in adjustable benefits must be provided to participants, beneficiaries, contributing employers and unions at least 30 days before reduction takes effect. 16 8

9 IMPACT OF FIP/RP DEFAULT SCHEDULE If bargaining parties can t agree, default schedule is implemented after 180 days from date bargaining agreement expires. How default schedule compares to other schedules for benefit reductions and contribution increases can impact bargaining strategies. For red zone plans, surcharges (5%/10%) continue until schedule adopted by parties as part of CBA. 17 THINGS THAT ARE STILL WORTH DISCUSSING 1. What Benefits Can Be Eliminated As Part Of Default Schedule? One schedule shall be designated as the default schedule and such schedule shall assume that there are no increases in contributions under the plan other than the increases necessary to emerge from critical status after future benefit accruals and other benefits (other than benefits the reduction or elimination of which are not permitted under section 411(d)(6)) have been reduced to the maximum extent permitted by law. [Code 432(e)(10(B) last ] See Also, In the Matter of Employer Appointed Trustees of the Rocky Mountain UFCW and Employers Pension Plan and Denver Area Meatcutters and Employers Pension Plan and Union Appointed Trustees of the Rocky Mountain UFCW and Employers Pension Plan and the Denver Area Meatcutters and Employers Pension Plan, FMCSCaseNo (Arbitrator Jaffe). 18 9

10 THINGS THAT ARE STILL WORTH DISCUSSING THINGS THAT ARE STILL WORTH DEBATING 2. What Is Reasonable Measures and When Can it Be Used? If the plan sponsor determines that, based on reasonable actuarial assumptions and upon exhaustion of all reasonable measures, the plan can not reasonably be expected to emerge from critical status by the end of the Rehabilitation Period, [the Rehabilitation Plan shall include] reasonable measures to emerge from critical status at a later time or to forestall possible insolvency. What Constitutes Exhaustion of Reasonable Measures? Market Conditions, Mergers, etc. What Are Reasonable Measures to Emerge Later or Forestall Insolvency? Who Makes Ultimate Determination? Record Needed to Satisfy Reasonable Measures Can Be Extensive? 19 THINGS THAT ARE STILL WORTH DISCUSSING THINGS THAT ARE STILL WORTH DEBATING Reasonable Measures RP Must: 1. Set forth alternatives considered; 2. Explain why plan is not reasonably expected to emerge from critical status by the end of RP period; and 3. Specify when, if ever, plan is expected to emerge from critical status under the RP. Approach involves a due diligence process

11 THINGS THAT ARE STILL WORTH DISCUSSING THINGS THAT ARE STILL WORTH DEBATING What Should Trustees Review? Mass withdrawal Contribution increases needed to emerge in RP period (w/o any benefit cuts) Benefit reductions (w/o contribution increases) needed to emerge in RP period (may not allow plan to emerge) Combination of above No Changes Does insolvency date under Reasonable Measures RP Forestall the insolvency date under mass withdrawal? 21 THINGS THAT ARE STILL WORTH DISCUSSING THINGS THAT ARE STILL WORTH DEBATING Goal: Schedule with contribution rates and benefits rates to increase possibility that employers and unions and employees continue long term commitment to plan. History and Pattern of Bargaining Agreements Record to support that not reasonable to expect bargainers to adopt schedule that would: Require significant concessions in wages and other benefits to support contribution rates needed to emerge in 10/13 years. To accept low or no benefits just for plan to emerge in 10/13 years. Require substantial contribution increases that could adversely impact employer s ability to compete. Is an Economist/Industry Analyst Needed? 22 11

12 PPA SECTIONS IN NEED OF MOST CLARIFICATION/ CORRECTION THINGS THAT ARE STILL WORTH DEBATING Standards for Reasonable Measures Under Code Section 432(e)(3)(A)(ii) What happens when law sunsets? (PPA does not apply to plan years beginning after December 31, 2014, but most continue to operate under FIP/RP until the end of FIP or RP period) 23 Nobody knows the troubles I ve seen. Common stumbling blocks Practical solutions 24 12

13 Collective Bargaining Issues Impact of sunset of PPA Are bargaining parties thinking about this? Bargaining parties adopting schedules Anticipating future legislation Some employers may be more likely to consider bargaining out FASB UPS example, perception 25 Collective Bargain Issues Bargaining out and withdrawal Local 138 Pension Trust Fund v. F.W. Honerkamp Co., 692 F.3d 127 (2d Cir. 2012) Can withdraw from critical status plan Central States and the Rehabilitation Plan Withdrawal Alternative Allocation Deals in Bargaining Consolidation approaches by Unions 26 13