Anyone who influences the investment product mix should likely be a fiduciary… but only if the selected investment managers are fiduciaries as well.
Yes, that eliminates all Mutual Funds and ETFs, since neither admit fiduciary responsibility. But Mutual Funds, ETFs, and Collective Trusts could be recommended by plan fiduciaries who are not paid for product placement.
Plan sponsors could be required to use: fee only plan advisors, non-product investment education providers, and 3(38) fiduciaries, TPAs and record keepers that help keep all the fiduciary bases covered.
Collective Investment Fund Trustees and Investment Managers are fiduciaries.
If Plan Sponsors do all the above, their responsibility is covered, and plan participants can be responsible for their own investment mistakes… subject to the product alignment rules outlined below.
What happens in the case of an individual brokerage account option within the plan? Are Plan Sponsors responsible for the performance of these portfolios? Perhaps, but just from a qualification standpoint… Rules that impose fiduciary liability on employers will eventually kill defined contribution plans dead!
So how should we deal with investment performance?
What constitutes poor performance, and how can performance be judged when all plan participants will have somewhat different investment objectives and risk tolerances?
If I want an income building, convertible-at-retirement CIF, that’s my choice… investments with income or “working capital” preservation objectives can’t be judged with a market value ruler.
If I get a 50% match from my employer, that’s an annual 50% gain on contributions… my good fortune, my business, my selections. Similarly with cost. If my program develops a convertible, 6% income, portfolio, why should it matter if the expense ratio is higher than with standard 401k income products?
Again, participant’s choice… leave the employer alone.
My solution would be an investment menu “warning system” based on product risk assessment and a system of controls on individual portfolio content.
The menu composition rules and participant selection controls would be based on risk recognition and income production instead of market value history… higher quality plus reasonable income should equal a more secure retirement.
All participants currently have access to “performance”, “income production”, and “expense” information; few convert the data into realistic performance expectations, or risk assessments.
A simple warning label could flag high risk products. Plans must have less than 20% “high risk” and at least 30% “low risk” opportunities in selection menus containing between 20 and 40 selections.
Participants must select at least 10 products… no more than two “high risk”, no less than three “low risk”. No high risk and all low risk is the “default” within three years of retirement.
No single portfolio position could exceed 25% of the portfolio… any excess would automatically be reallocated among four default positions. None of the “most risky’ products could be “default” choices, and at least one of the least risky must be.
Done. No DOL aggravation required.
For more information, contact a qualified 3(38) fiduciary at either QBOX Fiduciary Solutions or Expand Financial.