7 questions employers have about the new fiduciary regs

7 questions employers have about the new fiduciary regs

Since the Department of Labor released its final fiduciary compliance rules, there has been a tremendous amount of media coverage devoted to what plan sponsors need to know. Although much of it has been well written with good intentions, most of it has only served to confuse plan sponsors. Based upon what I am hearing from plan sponsors, following is what you say you want to know about the new regs:

1. Have my fiduciary responsibilities changed? Your company is still a fiduciary to your 401(k) plan and always will be. There is nothing that can be done to change that. You can welcome more fiduciaries into your fiduciary boat, but you can’t climb out. The new fiduciary regulations have absolutely nothing to do with your fiduciary responsibility. There is nothing you are required to do as a result of these final regulations.

Dept. of Labor

2. Do I need to worry about the final regulation compliance dates? Compliance with the regs is required by January 1, 2018. This date is not important to plan sponsors. You don’t have to have anything completed by that date. It is not your responsibility to make sure your investment adviser’s firm is complying with the new regs by this date.

3. Are these new regs bad for retirement plans? There is no downside to your 401(k) plan investment adviser being required to share recommendations with you that are in your best interest, which is what being a fiduciary entails. The middle class or small employers are not going to lose their ability to receive investment advice. Many comments about the rule were political bluster and were never grounded in any real facts.

4. I heard that these regs are the Obamacare of the retirement plan industry. Is that true? More nonsense from the brokerage lobby. If the brokerage industry decides not to provide investment advice because of compliance costs associated with the final fiduciary regulations, there are plenty of Registered Investment Advisory (RIAs) firms already providing these services at competitive rates that you can work with.

5. I have heard these regs will be repealed, just like the ACA. Is that likely?
No, just like the Affordable Care Act, these final fiduciary regs will not be repealed. They are here to stay.

“You can welcome more fiduciaries into your fiduciary boat, but you can’t climb out.”

6. Is my investment adviser impacted? Ask. If your investment adviser responds by saying: “I work for a RIA and have always been a fiduciary to your plan,” you are done. Forget about it. RIAs have been and will continue to be fiduciaries with regard to 401(k) plans. If your investment adviser works for a brokerage firm, there is good news here for you. His/her firm has likely not been acting as a fiduciary to your plan, but will now be required to.

7. Is there something I need to do if my investment adviser works for a brokerage firm? You will need to decide whether you are comfortable with the type of fiduciary services you are going to receive from your broker’s firm in comparison to what you could receive from an RIA. There are exceptions that have been engineered into the regulations for brokerage firms. You should evaluate and determine whether these exceptions are meaningful to you.

There is much less to these final fiduciary regulations for plan sponsors than has been reported. Everything here is good news for you and probably does not require any of your time or effort.

Robert C. Lawton
By Robert C. Lawton
Robert C. Lawton, AIF, CRPS is president of Lawton Retirement Plan Consultants, LLC, an RIA firm helping retirement plan sponsors with their investment, fiduciary, employee education and compliance responsibilities.