EMPLOYEE BENEFITS, COMPENSATION & PENSION LAW ABSTRACTS
"Employment-Based Retirement Plan Participation: Geographic Differences and Trends, 2007" ![Free Download]()
EBRI Issue Brief, No. 322, October 2008
CRAIG COPELAND, Employee Benefit Research Institute (EBRI)
Email: COPELAND@EBRI.ORG
This paper closely examines the level of participation by workers in
public- and private-sector employment-based pension or retirement
plans, based on the U.S. Census Bureau's March 2008 Current Population
Survey (CPS), the most recent data currently available. Among
full-time, full-year wage and salary workers ages 21-64 (those with the
strongest connection to the work force), just over 63 percent worked
for an employer or union that sponsors a retirement plan, and 55
percent participated in a plan. The paper begins with an overview of
retirement plan types and participation in these types of plans. Next,
it describes the data used in this study, along with their relative
strengths and weaknesses. From these data, results on participation in
employment-based retirement plans are analyzed for 2007 across various
worker characteristics and those of their employers. The paper then
explores retirement plan participation across U.S. geographic regions,
including a state-by-state comparison and a comparison of certain
consolidated statistical areas (CSAs). In addition to the results for
2007, trends from 1987-2007 in employment-based retirement plan
participation are presented across many of the same worker and employer
characteristics as used for 2007. The paper concludes with a discussion
of this study's findings.
"Between Labour Market and Retirement Pension - Flexible Transition as a New Paradigm for Ageing Societies?" ![Fee Download]()
International Social Security Review, Vol. 61, Issue 4, pp. 95-112, October/December 2008
STEPHAN BREDT, Government of the Federal Republic of Germany
Email: stephanbredt@gmx.de
Increasing the pensionable age due to rising life expectancy
meets strong political resistance. For health and labour market reasons
it will always be impossible for some to achieve full pension
eligibility directly from employment. Even if early retirement options
are not restricted the scope for an accumulation of earnings to fund an
early pension is often narrowly defined. Consequently, it is impossible
for early retirees to compensate for the reductions in the pension they
receive. Contrary to the general tendency to increase the pensionable
age an alternative reform proposal is currently under discussion in
German social policy circles. This involves free choice of retirement
at age 60; unlimited accumulation of additional pension entitlements
whilst earning; actuarial deductions for early retirement; and
consideration of life expectancy in making adjustments to pension
awards. This solution relieves the public pension system financially,
raises the attractiveness of senior citizens on the labour market,
offers the opportunity for a self-determined transition from work to
retirement and reduces political resistance to pension reform. The
effect on the labour market for senior citizens remains to be examined.
"A Legislative and Political History of Erisa Preemption, Part 3" ![Free Download]()
Journal of Pension Benefits, Vol. 15, No. 3, pp. 15-21, 2008
Buffalo Legal Studies Research Paper No. 2008-27
JAMES A. WOOTEN, University at Buffalo Law School, SUNY
Email: JWOOTEN@BUFFALO.EDU
The preemption language in section 514(a) of the Employee
Retirement Income Security Act of 1974 (ERISA) is exceedingly broad.
The preemption language in the law ERISA replaced - the Welfare and
Pension Plans Disclosure Act of 1958 (WPPDA) - was exceedingly narrow.
There were four stages in Congress's journey from the narrowly
circumscribed preemption of state law under the WPPDA to the sweeping
suppression of state law under ERISA. This article covers the first
three stages, tracing the evolution of ERISA's preemption language from
the enactment of the WPPDA to the end of the Ninety-Second Congress.
The next article in this series will describe the legislative history
of the preemption provision in the Ninety-Third Congress, which enacted
ERISA.
"Erisa Misrepresentation and Nondisclosure Claims: Securities Litigation Under the Guise of ERISA?" ![Free Download]()
CLOVIS J. TREVINO BRAVO, Geogetown University Law Center
Email: cjt25@law.georgetown.edu
As a result of recent corporate scandals and dramatic market
downturns, many employees whose defined contribution plans were heavily
invested in employer stock have experienced substantial losses in their
anticipated retirement savings. To recover for their losses, plan
participants have filed a number of lawsuits under the Employee
Retirement Income Security Act of 1974 ("ERISA") alleging that plan
fiduciaries made misrepresentations or failed to disclose material
information about the suitability of investing in the company stock.
These controversial suits are derivative or companion cases to
securities class actions based on the same allegations of
misrepresentations or nondisclosures. Even though there is a
significant overlap between the ERISA and the securities suit, the
procedural, remedial, and substantive rules governing the two actions
are substantially different. By juxtaposing these rules, this Article
examines whether ERISA fiduciary misrepresentation and nondisclosure
claims amount to securities litigation in disguise; and if so, whether
these claims should be allowed to proceed in the absence of the
procedural safeguards imposed by the Private Securities Litigation
Reform Act ("PSLRA").
"The Demise of Defined Benefit Plans for Private Employers"
Tax Notes, Vol. 121, No. 2, 2008
KATHRYN J. KENNEDY, John Marshall Law School
Email: 7kennedy@jmls.edu
This is the third report in a trilogy, which began in 2005,
in which the author examines the change in pension rules set forth in
both ERISA and the Internal Revenue Code, applicable to defined benefit
plans maintained by private employers. The original title was in the
hope that Congress would revisit ERISA's and the code's pension funding
rules in order to restore the viability of single-employer defined
benefit pension plans. Unfortunately the new rules promulgated by the
Pension Protection Act of 2006 (PPA '06) do not foster the growth of
existing or new defined benefit pension plans, except for those of
small employers.
In this third report, the author analyzes the new minimum pension
funding rules and the new restricted benefit rules (which also affect a
defined benefit plan's qualification status) enacted by PPA '06,
effective beginning in 2008. As noted in a recent report by the
Government Accountability Office, many employers are responding to
these rules by freezing benefit accruals for existing and/or new
entrants under the plan. Coupled with these new rules, the Financial
Accounting Standards Board has introduced a new accounting reporting
requirement that will have important financial effects for plan
sponsors of underfunded single-employer defined benefit plans.
Attorneys and actuaries alike are responding to these challenges by
offering a variety of strategies for plan sponsors. These requirements
and the responding strategies have been summarized at the end of this
article.
"Preemption and Civic Democracy in the Battle Over Wal-Mart" ![Free Download]()
Minnesota Law Review, Vol. 92, p. 1502, 2008
UC Irvine School of Law Research Paper No. 2008-10
CATHERINE FISK, University of California, Irvine Law School
Email: cfisk@law.uci.edu
MICHAEL M. OSWALT, affiliation not provided to SSRN
Email: moswalt@gmail.com
Where Wal-Mart goes, debate over the labor practices of the
world's largest retailer seems inevitably to follow. While the
company's expansion plans sometimes succeed and sometimes fail, the
setting for these disputes rarely changes; the battle over Wal-Mart is
fought primarily at the state and local levels. This battle pits
activists committed to a 'producerist' vision for the economy where
workers are paid well, treated with respect, and have access to
affordable health care against Wal-Mart's 'consumerist' economic vision
where low prices are the ultimate measure of societal well-being. The
important debate over these two competing visions of social and
economic welfare can occur in a truly democratic way only at the local
level. There, however, the intensely democratic activism and civic
dialogue generated by Wal-Mart and its opponents are severely
constrained by the legal doctrine of preemption. A federal court ruling
that state or local law is preempted not only takes away the power of
state and local government to address an issue, it takes away the power
of grassroots organizers to engage in democracy's most fundamental
behavior: to debate whether and how law should address a social problem
and to see organizing efforts made into law. Although much has been
written about federal preemption of state and local law, almost no
attention has been paid to the effect of preemption on political and
civic engagement.
This article explains the importance of local activism against the
backdrop of the failure of federal law to constrain Wal-Mart's efforts
to lower costs by paying inadequate wages and benefits and to thwart
unionization by both legal and illegal tactics. Local activists pursue
two common strategies to regulate Wal-Mart: fair-share health care
legislation and zoning to exclude large low-wage retailers from a local
market. Showing how preemption either derails local organizing (by
invalidating fair-share laws) or deforms it (by forcing fights over
working conditions into the alien territory of land-use law), we argue
against excessively broad interpretation of the preemptive scope of
federal law, particularly the Employee Retirement Income Security Act
of 1974 (ERISA). ERISA does not preempt local democratic initiatives,
such as those recently attempted in Maryland. These initiatives force
companies that do not provide adequate wages or health benefits to pay
a tax to offset the cost to taxpayers of providing health care and
basic social welfare protections to the working poor. We show that the
split decision of the United States Court of Appeals for the Fourth
Circuit, in "Retail Industry Leaders Ass'n v. Fielder", which found
ERISA to preempt the Maryland Fair Share Health Act, was based on an
erroneous reading of the Supreme Court's leading ERISA cases. Moving
beyond the technical arguments about the scope of ERISA preemption, we
argue - based on an extensive literature on theories of organizing and
civic democracy - that courts should narrowly construe the scope of
federal preemption in the field of low-wage work and affordable health
care. We thus bring to the law of preemption a new focus on the
extraordinary importance in a democracy of local activism, organizing,
and debate over social welfare. In sum, we contend that activists are
right to persist in fighting for local democratic initiatives like the
Maryland Fair Share Law even in the face of broad federal preemption,
and lawyers for progressive local movements can properly find a space
within ERISA preemption doctrine to defend the validity of these local
initiatives.
"A New Strategy to Maximize Retirement Withdrawals Using TIPS and Longevity Insurance" ![Free Download]()
S. GOWRI SHANKAR, University of Washington, Bothell
Email: shankar@u.washington.edu
Previous studies suggest that retirees face the risk of
financial ruin even with (real) withdrawal rates as low as 4%. This
paper proposes a new retirement investment strategy using TIPS and
longevity insurance that would permit annual withdrawal rates in excess
of 5% without any risk of ruin, while allowing retirees to retain
ownership of most of their savings in retirement. The strategy can be
implemented at minimal cost by retirees and their financial advisers.
Institutional providers could also use this strategy to develop
products that would provide inflation adjusted lifetime annuities
without requiring retirees to irrevocably commit their entire
retirement savings.
"Roth Retirement Accounts: A Practitioner's Approach" ![Free Download]()
Journal of Retirement Planning, Vol. 11, No. 5, 2008
MARK N. MERCER, affiliation not provided to SSRN
Email: mnmercer@ramercercpa.com
Mark Mercer describes the factors that must be considered
when choosing between a traditional IRA and a Roth IRA. Many published
articles and analyses of the Traditional vs. Roth decision framework
produce results that are not consistent and often times lead to
conclusions that are incorrect. Indeed, many articles claiming to
clarify common myths and misconceptions in the decision making process
also contain results that are not supported by any underlying theory
and often lead to results that vary from analysis to analysis.
This
article describes a method of "proofing" the results reached in
financial projections by observing after-tax returns on theoretical
post-tax deferred wage asset allocations. Absent this "proof", often
times the comparison of the Traditional vs. the Roth is simply playing
with numbers.
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