With increased oversight of employee benefit plans and higher expectations pertaining to fiduciary duties or business transparency, the marketplace is loaded with resources to help employers comply with laws and regulations, or even avoid litigation.
In some cases, benefit brokers and advisers can steer their clients toward an online resource center with robust, up-to-date compliance tools or a team of certified advisors who field HR questions in real time. Both can save substantial time and billable hours.
However, there are some parameters to follow when guiding employers down the occasionally treacherous path to compliance. Who exactly is lending a helping hand is equally, if not more, important than seeking assistance. Between cost considerations and collective firepower, knowledgeable observers say it makes more sense for producers to pair their employer clients with an outside law firm than hire, or steer work to, an in-house corporate counsel.
The employee benefits area has become too complex and specialized for in-house counsel to consistently and effectively monitor nuances in the regulatory structure, observes Robert Barker, an Atlanta-based corporate counsel and business consultant.
One example is litigation over 401(k) plan fees, including a growing number of class actions brought by St. Louis-based Schlichter Bogard & Denton LLP. He has seen that number swell from about a dozen in the first year to 140 by the fourth year, “and now there are all sorts of other law firms that are bringing these 401(k) pension lawsuits.”
Upon learning that the Affordable Care Act was being implemented, one industry attorney Barker admires suggested that 100,000 new ERISA attorneys would be needed to advise tax professionals and policymakers. The trouble is, he says, “there aren’t 200 lawyers in the country who really understand ERISA the way they need to understand ERISA.”
More importantly, Barker adds, there’s no expertise on the regulatory side to help explain what some of these regulations might entail for employers. “We’re coming to some sort of crescendo in terms of what people’s expectations are versus what resources are available,” he explains.
What’s unknown is whether regulators clamp down further, particularly with other regulatory agencies becoming involved. For example, he says the Department of Labor has since joined the Securities and Exchange Commission as a regulator of investment advice, while the Consumer Protection Finance Board and Federal Trade Commission also have jurisdiction in this area.
Joe Markland, an industry commentator and president of HR Technology Advisors, LLC, has this chief caveat for brokers and advisers: avoid playing the role of a lawyer or giving legal advice in appearing to offer clients an additional service. Growing plan design complexity and compliance issues require highly specialized knowledge, though specialists with HR expertise also can avert the need to hire a legal eagle. A related point he makes is that outside counsel provide an invaluable resource for brokers and advisers — not just their employer clients.
Education is the key. Fortunately for producers, they have greater access to “a plethora of basic literature” through national partnerships such as United Benefit Advisors or trade groups such as the National Association of Health Underwriters, explains Mark Bagnall, CEO of Bagnall.
Bruce Shutan is a Los Angeles freelance writer who has covered the HR and employee benefits industry for nearly 30 years.