Posts Tagged ‘Department of Labor’

Final Ruling to Improve Transparency of Fees and Expenses in 401(k)-Type Retirement Plans

Monday, March 26th, 2012

401k FeesFebruary 2012

The Department of Labor’s Employee Benefits Security Administration (EBSA) released a final rule that will help America’s workers manage and invest the money they contribute to their 401(k)-type pension plans. The rule will ensure: that workers in this type of plan are given, or have access to, the information they need to make informed decisions, including information about fees and expenses; the delivery of investment-related information in a format that enables workers to meaningfully compare the investment options under their pension plans; that plan fiduciaries use standard methodologies when calculating and disclosing expense and return information so as to achieve uniformity across the spectrum of investments that exist among and within plans, thus facilitating “apples-to-apples” comparisons among their plan’s investment options; and a new level of fee and expense transparency.

Background

  • EBSA is responsible for administering and enforcing the fiduciary, reporting, and disclosure provisions of Title I of ERISA.
  • The agency oversees approximately 708,000 private pension plans, including 483,000 participant-directed individual account plans such as 401(k)-type plans.
  • A “participant-directed plan” is a plan that provides for the allocation of investment responsibilities to participants or beneficiaries.
  • An estimated 72 million participants are covered by these participant directed plans, which contain nearly $3 trillion in assets.
  • While workers in these plans are responsible for making their own investment decisions, current law does not adequately ensure that all workers are given the information they need or ensure that information, when provided, is furnished in a format useful to workers, particularly information on investment choices including associated fees and expenses.
  • In April 2007, EBSA published in the Federal Register a Request for Information (72 FR 20457) soliciting the views, suggestions and comments from participants, plan sponsors, plan service providers and members of the financial community, as well as the public in general, on whether and to what extent rules should be adopted or modified, or other actions should be taken, to ensure that participants and beneficiaries have the information they need to make informed decisions about the management of their individual accounts and the investment of their retirement savings.

Overview of Final Rule

  • The final rule provides that the investment of plan assets is a fiduciary act governed by the fiduciary standards in ERISA section 404(a)(1)(A) and (B), which require plan fiduciaries to act prudently and solely in the interest of the plan’s participants and beneficiaries.
  • The final rule also provides that when a plan allocates investment responsibilities to participants or beneficiaries, the plan administrator must take steps to ensure that such participants and beneficiaries, on a regular and periodic basis, are made aware of their rights and responsibilities with respect to the investment of assets held in, or contributed to, their accounts and are provided sufficient information regarding the plan and the plan’s investment options, including fee and expense information, to make informed decisions with regard to the management of their individual accounts.
  • A plan administrator must provide to each participant or beneficiary certain plan-related information and certain investment-related information. These categories of information are described below.

Plan-Related Information

The first category of information that must be disclosed under the final rule is plan-related information. This general category is further divided into three subcategories as follows:

General Plan Information

  • General plan information consists of information about the structure and mechanics of the plan, such as an explanation of how to give investment instructions under the plan, a current list of the plan’s investment options, and a description of any “brokerage windows” or similar arrangement that enables the selection of investments beyond those designated by the plan.

Administrative Expenses Information

  • An explanation of any fees and expenses for general plan administrative services that may be charged to or deducted from all individual accounts. Examples include fees and expenses for legal, accounting, and recordkeeping services.

Individual Expenses Information

  • An explanation of any fees and expenses that may be charged to or deducted from the individual account of a specific participant or beneficiary based on the actions taken by that person. Examples include fees and expenses for plan loans and for processing qualified domestic relations orders.

The information in these three subcategories must be given to participants on or before the date they can first direct their investments, and then again annually thereafter.

Statements of Actual Charges or Deductions

In addition to the plan-related information that must be furnished up front and annually, participants must receive statements, at least quarterly, showing the dollar amount of the plan-related fees and expenses (whether “administrative” or “individual”) actually charged to or deducted from their individual accounts, along with a description of the services for which the charge or deduction was made. These specific disclosures may be included in quarterly benefit statements required under section 105 of ERISA.

Investment-Related Information

The second category of information that must be disclosed under the final rule is investment-related information. This category contains several subcategories of core information about each investment option under the plan, including:

Performance Data

  • Participants must be provided specific information about historical investment performance. 1, 5 and 10-year returns must be provided for investment options, such as mutual funds, that do not have fixed rates of return. For investment options that have a fixed or stated rate of return, the annual rate of return and the term of the investment must be disclosed.

Benchmark Information

  • For investment options that do not have a fixed rate of return, the name and returns of an appropriate broad-based securities market index over 1-, 5-, and 10-year periods (matching the Performance Data periods) must be provided. Investment options with fixed rates of return are not subject to this requirement.

Fee and Expense Information

  • For investment options that do not a have a fixed rate of return, the total annual operating expenses expressed as both a percentage of assets and as a dollar amount for each $1,000 invested, and any shareholder-type fees or restrictions on the participant’s ability to purchase or withdraw from the investment.
  • For investment options that have a fixed rate of return, any shareholder-type fees or restrictions on the participant’s ability to purchase or withdraw from the investment.

Internet Web site Address

  • Investment-related information includes an internet Web site address that is sufficiently specific to provide participants and beneficiaries access to specific additional information about the investment options for workers who want more or more current information.

Glossary

  • Investment-related information includes a general glossary of terms to assist participants and beneficiaries in understanding the plan’s investment options, or an Internet Web site address that is sufficiently specific to provide access to such a glossary.

Comparative Format Requirement

Investment-related information must be furnished to participants or beneficiaries on or before the date they can first direct their investments, and then again annually thereafter. It also must be furnished in a chart or similar format designed to facilitate a comparison of each investment option available under the plan. The final rule includes, as an appendix, a model comparative chart, which when correctly completed, may be used by the plan administrator to satisfy the rule’s requirement that a plan’s investment option information be provided in a comparative format.

Miscellaneous

  • The rule provides plan administrators protection from liability for the completeness and accuracy of information provided to participants if the plan administrator reasonably and in good faith relies upon information provided by a service provider.
  • After a participant has invested in a particular investment option, he or she must be provided any materials the plan receives regarding voting, tender or similar rights in the option.
  • Upon request, the plan administrator must also furnish prospectuses, financial reports and statements of valuation and of assets held by an investment option.
  • The general disclosure regulation at 29 CFR § 2520.104b-1 applies to material furnished under this regulation, including the safe harbor for electronic disclosures at paragraph (c) of that regulation.
  • The final rule would also make conforming changes to the disclosure requirements for plans that elect to comply with the existing ERISA section 404(c) regulations.

Economic Benefits of the Final Rule

  • The Department estimates that the rule will be economically significant.
  • The anticipated cost of the rule is $425 million in 2012 (2010 dollars), arising from legal compliance review, time spent consolidating information for participants, creating and updating Web sites, preparing and distributing annual and quarterly disclosures, and material and postage costs to distribute the disclosures.
  • A significant benefit of this rule is that it will reduce the amount of time participants spend collecting fee and expense information and organizing the information in a format that allows key information to be compared; this time savings is estimated to total nearly 54 million hours valued at nearly $2 billion in 2012 (2010 dollars).
  • Over the ten-year period 2012-2021, EBSA estimates that the present value of the benefits provided by the final rule will be approximately $14.9 billion and the present value of the costs will be approximately $2.7 billion.

Effective and Applicability Dates

  • The July 1 effective date of the final regulation relating to service provider disclosure under section 408(b)(2) will impact when disclosures must first be furnished under the final rule on fee disclosures for participants. The transitional rule for the final rule on fee disclosures for participants was revised in July 2011 so that the first disclosures would follow the effective date of the 408(b)(2) regulation.
  • Consequently, for calendar year plans, the initial annual disclosure of “plan-level” and “investment-level” information (including associated fees and expenses) must be furnished no later than August 30, 2012 (i.e., 60 days after the 408(b)(2) regulation’s July 1 effective date).
  • The first quarterly statement must then be furnished no later than November 14, 2012 (i.e., 45 days after the end of the third quarter (July through September), during which initial disclosures were first required). This quarterly statement need only reflect the fees and expenses actually deducted from the participant or beneficiary’s account during the July through September quarter to which the statement relates.

Contact Information

For questions about the rule, contact EBSA’s Office of Regulations and Interpretations at 202-693-8500.

This fact sheet has been developed by the U.S. Department of Labor, Employee Benefits Security Administration, Washington, DC 20210. It will be made available in alternate formats upon request: Voice telephone: 202-693-8664; TTY: 202-501-3911. In addition, the information in this fact sheet constitutes a small entity compliance guide for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.

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Legal Disclaimer: This article is intended for informational purposes only and by no means should replace or substitute other legal documents (governmental or non-governmental) reflecting similar content or advice. If you have any questions concerning your situation or the information provided, please consult with an attorney, CPA or HR Professional.

Work Opportunity Tax Credit Overview

Sunday, February 27th, 2011

Work Opportunity Tax CreditThe Work Opportunity Tax Credit (WOTC) is a federal tax credit available to all private sector businesses as an incentive to employers to hire workers in certain groups who consistently experience high rates of unemployment. The Work Opportunity Tax Credit reduces an employer’s cost of doing business and requires little paperwork.

The tax credit allows employers to reduce their federal tax liability by up to $9,000 per new hire. For-profit businesses of any size qualify. And the tax credit applies to temporary, seasonal, part-time and full-time workers. The tax credit is available for new hires with job start dates through December 31, 2011.

The WOTC applies only to new employees who have never worked for the hiring employer at any other time.

  • Any size for-profit employer may apply for the WOTC.
  • No limit to the number of new hires an employer may claim for the WOTC in any calendar year.
  • No relatives or dependents or majority business owners qualify as WOTC hires.
  • Self-employed individuals do not qualify as WOTC hires.
  • Temporary, seasonal, part-time and full-time work applies.
  • Any type of job is acceptable.
  • There is no limit to the number of new hires that can qualify an employer for the WOTC in any calendar year and the amount of tax credit an employer can accrue.
  • If your company is not profitable this year, the credits are good for up to 3 years from the due date of your return.

Certification of the Employee

An employer must request and receive certification from its state workforce agency (SWA) that the new hire is a member of one of the WOTC target groups before the employer can claim the WOTC on its federal income tax return. To request certification, the employer must:

  • Complete page 1 of IRS Form 8850, Pre-Screening Notice and Certification Request for the Work Opportunity Credit, by the date of the job offer and page 2 of IRS Form 8850 after the individual is hired; and
  • Complete one of the following one-page U.S. Department of Labor forms, as appropriate:
    • ETA Form 9061, Individual Characteristics Form, if the new hire has not been given a conditional certification, ETA Form 9062, or
    • ETA Form 9062, Conditional Certification Form, if provided to the job seeker by a participating agency, such as a vocational rehabilitation agency, an employment network, or a SWA; and Mail the signed/dated IRS and ETA forms to the state workforce agency’s WOTC Coordinator not later than 28 days after the new hire begins work.

To learn more about the WOTC, call your State WOTC Coordinator, visit the WOTC website or call your local employment or state workforce agency.  To find the State WOTC Coordinators, click here.

National Coordinator
Carmen Ortiz
Washington, D.C.
202-693-2786
ortiz.carmen@dol.gov

Submitted By:

Jean Austin, SPHR
Manager of HR Services
Payroll Control Systems
Office: 763-746-1942
Cell: 612-770-6187
jaustin@pcspayroll.com
www.pcspayroll.com

Legal Disclaimer: This article is intended for informational purposes only and by no means should replace or substitute other legal documents (governmental or non-governmental) reflecting similar content or advice. If you have any questions concerning your situation or the information provided, please consult with an attorney, CPA or HR Professional.

Overtime Pay: You Cheated Me!

Tuesday, September 28th, 2010

Overtime Pay CalculationSeptember 2010
By: Walter J. Liszka

Over the last six years, our firm has seen a startling increase in Federal Court litigation to collect unpaid overtime pay. These multi-employee lawsuits – either of the class action or opt-in/opt-out variety – have been filed to enforce both federal (Fair Labor Standards Act) and state (for example, Illinois Wage Payment and Collection Act) concepts and are creating a potentially substantial back pay liability. It also should not go without notice that under principles of both the Fair Labor Standards Act and many state wage payment laws, successful plaintiffs’ attorneys are entitled to collect “reasonable attorneys’ fees” for their efforts in enforcing these statutory requirements. As an example, in one case that is currently pending in our Chicago office, the overtime wages due employees amounted to less than $7,000 while the claim for attorneys’ fees came to over $100,000. Of course we are fighting tooth and nail to reduce these fees but the amount of reasonable attorneys’ fees will ultimately be decided by the Federal Court Judge currently assigned the case and/or the 7th Circuit Court of Appeals.

Now entering the scene on the Department of Labor’s website is the Fair Labor Standards Act Overtime Calculator Advisor (www.dol.gov/elaws/otcalculator.htm). According to the DOL, the website has been developed “to help employees and employers understand the overtime pay requirements” by providing a “simple procedure” to calculate overtime for a sample pay period. Having attempted to use this system, there is some doubt as to how simple it is to use and the writer is reminded of the old adage “I’m from the government and I’m here to help you.” While some may claim the website is a learning tool, it is this writer’s opinion that it will only lead to greater conflict between employees and employers over the calculation of overtime hours.

It is important for employers to be aware of this website and, more importantly, to understand the accessibility of such information to employees. While this article does not address whether or not an individual employee is exempt or non-exempt (i.e. entitled or not entitled to overtime compensation), it is extremely important for employers to acquaint themselves with tools such as the Overtime Calculator Advisor because in all likelihood your employees will be familiar with the same.

In almost every case, in the calculation of overtime pay, time and one-half must be paid on the employee’s regular rate of pay for all hours worked over 40 hours in a calendar work week. The regular rate of pay includes not only the employee’s hourly wage but may include additional compensation, such as non-discretionary bonuses, attendance bonuses or more complex scenarios that include employees receiving different rates of pay for working at two or more jobs with the same employer in one calendar work week. In these situations, absent agreement to calculate otherwise, the employee’s regular rate of pay would be determined by calculating the amount of time the employee worked at each job. An hourly employee’s “regular rate” is the hourly rate of pay plus any additional compensation. For example: an employee worked in one calendar work week on a job paying $11.00 per hour for 30 hours and on a second job, paying $14.00 per hour for 20 hours. The employee’s “regular rate of pay” for that work week is:

((30 hours x $11.00) + (20 hours x $14.00))/50 = $12.20 per hour

The employee’s CORRECT PAY would be:

(50 hours x 12.20) + (10 hours x 6.10)
610.00      +          61.00           =         $671.00

If an employee has an hourly rate of pay of $10.00 per hour and receives an Attendance Bonus for that week of $100.00, if the employee works 44 hours, that employee’s “regular rate of pay” is:

((44 hours x $10.00) + $100.00)/44 = $12.27 per hour

The employee’s CORRECT PAY would be:

(44 hours x 12.27) + (4 hours x 6.14)
$539.88       +        $24.56          =         $564.44

It has been our experience that one of employers’ biggest misunderstandings is how to correctly figure and pay overtime.

It is strongly suggested that every employer become familiarized with the DOL website and do its own self audit to assure that employees are receiving the correct overtime pay entitlement before an employee, group of employees or a plaintiff’s lawyer raises this issue.

Submitted By:

Walter J. Liszka
Wessels Sherman Joerg Liszka Laverty Seneczko P.C.
952.746.1700 Office
www.wesselssherman.com

Legal Disclaimer: This article is intended for informational purposes only and by no means should replace or substitute other legal documents (governmental or non-governmental) reflecting similar content or advice. If you have any questions concerning your situation or the information provided, please consult with an attorney or an HR Professional.