ML BeneBits

The Internal Revenue Service (IRS) recently issued proposed regulations that would require forfeitures in defined contribution plans—i.e., unvested benefits forfeited by terminating defined contribution plan participants—to be used to offset employer contributions or pay reasonable plan administrative expenses, or otherwise be allocated to participants, by the end of the year following the year of forfeiture.

The US Department of Labor (DOL) released an extensive regulatory agenda in January 2023 laying out the agency’s priorities for the year. The DOL has faced scrutiny from Congress this legislative session, demonstrated most recently by the congressional repeal of the DOL’s so-called “ESG Rule” in early March. President Joseph Biden’s veto of that repeal on March 20, 2023, rescued the ESG Rule from the congressional chopping block. Luckily for the DOL, however, many of the other 70-plus priority items for 2023 appear to be less controversial. Below we summarize a few of those items that have direct relevance to Employee Retirement Income Security Act (ERISA) regulated retirement plan sponsors.

On October 26, 2022, the US Securities and Exchange Commission (SEC) announced the adoption of its new rules directing national securities exchanges, including the New York Stock Exchange (NYSE) and the Nasdaq Stock Market (Nasdaq), to establish listing standards for compensation recovery (clawback) policies. In accordance with the SEC’s clawback rule, both the NYSE and Nasdaq submitted their clawback proposals to the SEC on February 22, 2023. This blog post offers guidance on compliance and implementation deadlines pursuant to these proposals, as well as what public companies need to do in the coming months to ensure timely adoption.

As the Code Section 139 relief period is scheduled to end soon along with the end of the COVID-19 national emergency, employers that assisted employees with personal expenses attributable to the COVID-19 pandemic should consider taking certain steps before the period ends.

Both the US House of Representatives and the Senate passed a resolution to overturn the US Department of Labor’s so-called “ESG Rule” on February 28 and March 1, 2023, respectively. The ESG Rule has been a topic of debate as it sought to clarify the role that environmental, social, and governance (ESG) factors can play in fiduciary decision-making on behalf of retirement plans regulated by ERISA. This resolution is part of a larger effort to limit ESG investing at both federal and state levels.

The Employee Benefits Security Administration (EBSA) of the US Department of Labor (DOL) has continued to be active in civil and criminal enforcement investigations of ERISA’s fiduciary duties. This blog post details two recent updates concerning the DOL’s ERISA enforcement program.

The SECURE Act 2.0 makes changes to the US employer retirement plan system with respect to both single employer plans and to “applicable collectively bargained plans.” Applicable collectively bargained plans are defined in the statute as plans maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers, i.e., multiemployer plans.

The IRS proposed a revised version of Treas. Reg. § 1.401(a)-21 (the Proposed Regulation) that, if finalized, would make permanent the option of remote witnessing of required spousal consents to certain retirement plan distribution elections and loan elections. The IRS had temporarily authorized remote witnessing in limited circumstances during the COVID-19 pandemic as a matter of practical necessity. The Proposed Regulation, issued on December 30, 2022, makes remote witnessing permanent, effective six months after the Proposed Regulation is finalized by the IRS. Until that finalization date, the IRS notes that taxpayers may rely on the rules set forth in the Proposed Regulation.

The Pension Benefit Guaranty Corporation (PBGC) is now allowing multiemployer pension plans that are applying for special financial assistance (SFA) to request relief from the standard withdrawal liability calculation requirements that would otherwise apply under the PBGC’s original final rule under 29 CFR Part 4262 (the Original Final Rule). The Original Final Rule, which took effect in August 2022, created various conditions for multiemployer plans receiving SFA, including conditions on the calculation of withdrawal liability.

The Biden administration intends to end the national emergency and public health emergency declarations (Emergency Declarations) attributable to the COVID-19 pandemic on May 11, 2023. The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans that will sunset at the conclusion of the Emergency Declarations. It remains to be seen what, if any, guidance will come from the regulatory agencies outlining how these mandates will be phased out or, potentially, if any continuing obligations will remain.