DOL Releases New Fiduciary FAQ
August 8, 2017 by Melanie Waddell
ERISA attorneys are applauding the Department of Labor’s just-released FAQ guidance on its fiduciary rule.
“We are generally pleased,” said Steve Saxon, partner at Groom Law Group. “The 408(b)(2) guidance just makes good sense because the DOL was already providing similar relief under the Transition Rule.”
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The guidance “is generally favorable, and pro-business in a way that doesn’t harm consumers,” but there are some potential “traps” to watch, added Fred Reish, partner in Drinker Biddle & Reath’s employee benefits and executive compensation practice group in Los Angeles.
The FAQs provide information on whether:
- a “fiduciary status disclosure” issue under the Department of Labor’s ERISA section 408(b)(2) service provider disclosure regulation that applies to ERISA pension plans;
- recommendations to plan participants and IRA owners to contribute to or increase contributions to a plan or IRA constitute fiduciary investment advice under the fiduciary rule; and
- recommendations to employers and other plan fiduciaries on plan design changes intended to increase plan participation and contribution rates constitute fiduciary investment advice under the fiduciary rule.
Labor states that like the fiduciary fule and related exemptions, the guidance is generally limited to advice concerning investments in IRAs, plans covered under the Employee Retirement Income Security Act and other plans covered by section 4975 of the Internal Revenue Code.
Reish notes that Labor’s decision, as set out in the FAQs, “to treat advice on contributions as non-fiduciary is helpful to retirement investors. Properly done, that help can be invaluable, and the potential conflicts of interest — and therefore the potential for bad advice about contributions — are very limited.”
This stance is “a reversal of the DOL’s prior position on this issue,” Reish opines.
As to part of the guidance that addresses notifying plan sponsors of fiduciary status, “the issue is a little more complicated,” Reish said.
“There probably isn’t much potential damage to plans if they don’t know — for a limited time period — that their advisor is a fiduciary. And there certainly is a temporary saving of effort and money in delaying the notice. Also, for broker-dealers there is the possibility that the final rules will have a seller’s exception so that, in some cases, the broker-dealer would not ultimately be a fiduciary. In that case, multiple conflicting notices could result in confusion.”
However, Reish continues, “there are traps for the unwary.”
He sets out this example: “If a broker-dealer previously told plans that the advisors were not serving as fiduciaries, the new relief does not apply. Also, as I read it, the new relief may not apply where the advisor/broker-dealer was already acting as a functional fiduciary prior to June 9,” which is when the rule’s Impartial Conduct Standards became effective.
“As a result, broker-dealers, insurance agents and brokers, and others who advise plans need to be careful about whether they rely on this new relief.”
