THE FUTURE OF PENSION AND WELFARE BENEFITS: QUALIFIED RETIREMENT PLANS. ABA Section of Labor & Employment Law. Second Annual CLE Conference

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1 THE FUTURE OF PENSION AND WELFARE BENEFITS: QUALIFIED RETIREMENT PLANS ABA Section of Labor & Employment Law Second Annual CLE Conference Denver, Colorado September 11, 2008 Charles B. Wolf Vedder Price P.C. 222 North LaSalle Street Chicago, Illinois /

2 I. Past Trends: A. Since the enactment of ERISA, the percentage of active workers covered by defined benefit plans has declined substantially, whereas coverage under defined contribution plans has risen. 1. Over the last five years pension plan assets have overtaken liabilities although 2008 results may reverse the direction of the roller coaster once again.

3 Source: Watson Wyatt Worldwide. 2. Has the freezing of pension plans reached its peak? FORTUNE 1000 list year Number of defined benefit plan sponsors New freezes Percentage of plan sponsors freezing plan Cumulative number of sponsors of a frozen plan % % % % 45 Source: Watson Wyatt Worldwide B. The Pension Protection Act of 2006 has eliminated barriers preventing companies from incorporating automatic enrollment into their 401(k) plans. Many plans that did not have

4 automatic enrollment have implemented the feature or are considering when and how to adopt the feature. 1. Vanguard s study comparing voluntary and automatic enrollment for new hires yielded positive results, but with some concerns. a. As expected, 86% of new hires participate in a plan featuring automatic enrollment, whereas only 45% of new hires under voluntary enrollment plans elect to join their 401(k). b. The median contribution rate for participants, however, is 40% lower for automatic enrollment employees than for voluntary enrollment employees. c. Automatic enrollment has a particular impact on the demographics of traditionally low participation groups (younger and/or low wage). It is most useful, according to Vanguard, when accompanied with an automatic annual increase in contribution rate. 2. Will increases in participation due to automatic enrollment lead employers to curtail employer contributions? 3. Will auto-enrollment go far enough? Should it be mandatory? 4. Should we protect people from their own mistakes in financial planning and investment? 5. What should be the normal retirement age for the 21st Century? II. Ideas on the Horizon for DB Plans. A. Following England s lead, the Bush Administration and a number of large investment and insurance companies are seeking legislation to facilitate the transfer of defined benefit plan assets and liabilities to non-employer financial buyers. There is special interest in the $500 million in frozen corporate pension plans. This plan has been endorsed by Bradley Belt, a former PBGC director and former top aide to John McCain. The Treasury Department s August 6, 2008 press release summarizes the proposed framework for legislative change which includes protection of participants and the PBGC s best interests and limits on undue concentration of risk. B. Isolate and reduce risks for employers associated with DB plans, via legislation and/or planning:: 1. Wage inflation 2. Interest rate declines 3. Investment risk

5 4. Incentive risk (early retirement incentives) 5. Mortality risk C. Senators Joseph Lieberman (D CT) and Susan Collins (R ME) have proposed amendments to the Commodity Exchange Act to prohibit public and private pension funds from investing in agricultural and energy commodities. a. This legislation seeks to reduce inflation in the price of food and fuel by limiting speculation in the commodities market caused by pension investment. b. Opponents argue that the bill will create restrictions beyond those already imposed by ERISA for fiduciaries and that pension funds do not significantly invest in commodities. III. What are the Candidates saying? A. Obama 1. When campaigning in the Iowa primary, Obama s ads and speeches referred to retirement security and pension as problems needing attention. 2. Obama supports automatic saving/enrollment in retirement plans by requiring employers to enroll workers in a direct-deposit IRA account. Savings will automatically roll over when employees change jobs. He claims that experts estimate that this program will increase low to middle income workers participation from 15 to 80 percent. 3. Obama has also stated that he will create incentives for workers to save by providing a 50% savings match of the first $1,000 saved by low and middle-income Americans who earn less than $75,000. The savings match will be automatically deposited by the IRS in designated personal retirement accounts. 4. He also has said, on more than one occasion, that he will work to secure hard-earned pensions by ensuring that companies do not dump their pension obligations. He has pointed to changing bankruptcy laws to prevent companies from shedding pension obligations. Time will tell if he can deliver on those promises and what those promises actually mean. 5. Obama was one of thirteen senators who recently wrote to the Government Accountability Office to request an assessment of how the PBGC pays benefits for terminated plan participants. B. McCain

6 1. McCain has not been vocal and has focused on the alleged impact of Obama s policies on businesses, forcing them to inevitably cut jobs. He has proposed cutting corporate income taxes to keep jobs here. 2. He has been criticized by conservative elements for not voting for tax cuts for wealthy Americans. He has proposed a fairer and flatter tax. 3. He has criticized the PBGC as a looming train wreck that could cost the taxpayers of America untold billions of dollars. 4. He has mentioned, as part of his social security reform, the possibility of increasing the retirement age. 5. Most of what McCain has addressed is about social security reform and not DB or DC plans including partial privatization of social security. 6. As mentioned above, Bradley Belt, former PBGC Director and top aide of McCain, believes that plan sponsors should be allowed to transfer pension assets and liabilities to non-employer financial buyers. He also agrees with the Bush administration, that the tax incentives afforded to employers should apply to the banks, insurance companies or private equity firms that are the transferees.