Chapter X
Making Pensions Work
Jonathan Barry Forman, J.D.
Professor of Law, College of Law, University of Oklahoma, 300 Timberdell Road, Norman, Oklahoma73019. (405) 325-4779 (tel); . Copyright © 2004 by Jonathan Barry Forman. All Rights Reserved. Article drafted March 25, 2004.
Synopsis
X.01Abstract
X.02Introduction
X.03An Overview of the Pension System
[1]Types of Retirement Plans
[a]Defined Benefit Plans
[b]Defined Contribution Plans
[c]“Hybrid” Retirement Plans
[d]Individual Retirement Accounts and Keoghs
[2]The Regulation of Employment-based Retirement Plans
[a]Participation
[b]Coverage
[c]Vesting
[d]Benefit Accrual
[e]Contributions and Benefits
[f]Funding
[g]Other Requirements
[3]Retirement Plan Trends and Problems
[a]Only About Half of American Workers Have Pensions
[b]Americans are Living Longer but Retiring Earlier
[c]The Current System Will Not Provide Adequate Retirement Incomes
[d]There Has Been a Shift Away from Traditional Defined Benefit Plans
[e]The Trend toward Phased Retirement and Bridge Jobs
[f]The Decline of Annuitization
X.04The Financial Incentives Created by Pension Plans
[1]The Tax Preferences for Pension Savings Reduce the Work Disincentives Inherent in the Taxation of Earned Income
[2]The Accumulation of Pension Wealth Encourages Early Retirement
[3]Benefit Accruals Patterns Influence Decisions about Work and Retirement
[4]Traditional Pensions Penalize Mobile Workers
[5]Traditional Pensions Push Workers into Retirement
[6]Defined Contribution Plans and Cash Balance Plans Tend to Be Neutral about the Age of Retirement
X.05Modest Changes That Could Promote Adequate Retirement Income Security and Reduce Work Disincentives in the Current System
[1]Proposals to Expand the Pension System
[a]Make Retirement Plans Universal and Portable
[i]Toughen Coverage and Participation Requirements
[ii]Shorten Vesting Periods
[iii]Enhance Investment Returns
[iv]Preserve Benefits until Retirement
[b]Automatic Enrollment and Minimum Contributions
[c]Expand the Savers Credit and Make it Refundable
[d]Require Employers without Pension Plans to Offer Payroll-deduction IRAs
[2]Proposals to Reduce Work Disincentives
[a]Toughen the Penalty on Premature Withdrawals
[b]Raise the Normal Retirement Age
[c]Raise the Minimum Distribution Age or Repeal the Rule
[d]Repeal the Age Discrimination Exceptions
[e]Change the Limits on Benefits and Contributions
[f]Require that Benefits be Paid as Indexed Annuities
[g]Make Phased Retirement Easier
X.06More Comprehensive Proposals
[1]Mandate Age Neutrality
[2]A Mandatory Universal Pension System (MUPS)
X.07Conclusion
X.01Abstract
The current pension system is failing American workers and their families. Only about half of American workers have pension plans, and few of those workerscan be confident that they will have enough income to meet their needs throughout their retirement years. Moreover, the current pension system often has an adverse impact on individual decisions about work and retirement. For example, traditional pension plans often push older workers into retirement just when those older workers should instead be encouraged to keep working and accumulating assets to fund their retirements. In short, the current system isnot working.
The purpose of this chapter is to consider how to reform the pension system so that it better meets the retirement income needs of American workers and their families and so that it helps make American workers as productive as possible. To reform the system, pension policy should be redesigned to 1) strengthen the connection between pension benefits and work effort, and2) to help ensure that all American workers and their families have adequate retirement incomes.
At the outset, this chapter provides an overview of the current pension system and identifies some of its recent trends and problems. Next, this chapter explains the financial incentives that are created by pension plans. Finally, this chapter offers a variety of recommendations about how to make the pension system work better. In short, this is a chapter about how to make the pension system work.
X.02Introduction[*]
American workers receive more than one-quarter of their compensation in the form of fringe benefits.[1] The structure of these fringe benefit programs can have a significant impact on the work and retirement behavior of those beneficiaries.[2] In that regard, pension planscan have particularly significant impacts on the work and retirement choices of American workers. The purpose of this chapter is to consider how pension policy should be redesigned to help make American workers to be as productive as possible. This chapter alsoconsiders how pension policy should be redesigned to better meet the retiree needs of workersand their families.
At the outset, Section 3 provides an overview of the current pension system and identifies some of its recent trends and problems. Next, Section 4 explains the financial incentives that are created by pension plans. The remainder of the chapter then offers suggestions about how to make the pension system work better. In that regard, Section 5 offers some modest changes that could help reduce work disincentives in the current system and help meet the retirement income needs of workers and their families. Finally, Section 6 offers some more comprehensive solutions.
X.03An Overview of the Pension System
At the outset, it is important to note that the United States has a “voluntary” pension system. Employers are not required to have pensions, but if they do, they are subject to regulation. Most private retirement plans are governed by the Employee Retirement Income Security Act of 1974 (ERISA).[3]
Most retirement plans qualify for favorable tax treatment. Basically, an employer’s contributions to a tax-qualified retirement plan on behalf of an employee are not taxable to the employee. Moreover, the pension fund’s earnings on those contributions are tax-exempt.[4] Workers pay tax only when they receive distributions of their pension benefits, and, at that point, the usual rules for taxing annuities apply.[5] Nevertheless, the employer is allowed a current deduction for its contributions (within limits).[6]
[1]Types of Retirement Plans
Retirement plans generally fall into two broad categories based on the nature of the benefits provided: defined benefit plans and defined contribution plans.
[a]Defined Benefit Plans
In a defined benefit plan, an employer promises employees a specific benefit at retirement. To provide that benefit, the employer makes payments into a trust fund and makes withdrawals from the trust fund. Employer contributions are based on actuarial valuations, and the employer bears all of the investment risks and responsibilities. Benefits are typically guaranteed by the Pension Benefit Guaranty Corporation.
Defined benefit plans typically provide each worker with a specific annual retirement benefit that is tied to the worker’s final average compensation and number of years of service. For example, a plan might provide that a worker’s annual retirement benefit is equal to two percent times years of servicetimes final average compensation(B = 2% × yos × fac). Under this final-average-pay formula, a worker with 30 years of service would receive a retirement benefit equal to 60percent of her pre-retirement earnings (B = 60% × fac = 2% × 30 yos × fac). Final average compensation is typically computed by averaging the worker’s salary over the 3 or 5 years immediately prior to retirement.[7]
[b]Defined Contribution Plans
Under a typical defined contribution plan, the employer simply contributes a specified percentage of the worker’s compensation to an individual investment account for the worker. For example, contributions might be set at six percent of annual compensation. Under such a plan, a worker who earned $30,000 in a given year would have $1,800 contributed to an individual investment account for her ($1,800 = 6% × $30,000). Her benefit at retirement would be based on all such contributions plus investment earnings thereon. Defined contribution plans are also known as “individual account” plans because each worker has her own account, as opposed to defined benefit plans where the plan’s assets are pooled for the benefit of all of the employees.
There are a variety of different types of defined contribution plans, including money purchase pension plans, target benefit plans, profit-sharing plans, stock bonus plans, and employee stock ownership plans (“ESOPs”).
Profit-sharing and stock bonus plans may include a feature which allows workers to choose between receiving cash currently or deferring taxation by placing the money in a retirement account (Internal Revenue Code § 401(k)). Consequently, these plans are sometimes called “401(k) plans.”[8] The maximum annual amount of such elective deferrals that can be made by an individual in 2004 is $13,000,although workers over the age of 50 can contribute up to another $3,000.[9]
[c]“Hybrid” Retirement Plans
Alternatively, many employers rely on so-called “hybrid” retirement plans that mix the features of both defined benefit and defined contribution plans. For example, a cash balance plan is a defined benefit plan that looks like a defined contribution plan.[10] Like other defined benefit plans, employer contributions are based on actuarial valuations, and the employer bears all of the investment risks and responsibilities. Like defined contribution plans, however, cash balance plans provide workers with individual accounts (albeit hypothetical). For example, a simple cash balance plan might allocate six percent of salary to each worker’s account each year and credit the account with 5 percent interest on the balance in the account. Under such a plan, a worker who earned $30,000 in a given year would get an annual cash balance credit of $1,800 ($1,800 = 6%× $30,000), plus an interest credit equal to 5 percent of the balance in her hypothetical account as of the beginning of the year.[11]
Still another common approach is for an employer to offer a combination of defined benefit and defined contribution plans. For example, many companies with traditional defined benefit plans have recently added 401(k) plans.
[d]Individual Retirement Accounts and Keoghs
Of note, favorable tax rules are also available for certain individual retirement accounts (IRAs). Almost any worker can set up an IRA account with a bank or other financial institution and contribute up to $3,000 each year to that account, and workers who are not covered by another retirement plan usually can deduct their IRA contributions.[12] If a worker is covered by another retirement plan, however, the deduction may be reduced or eliminated if the worker’s income exceeds $45,000 for a single individual or $65,000 for a married couple (in 2004).[13] Like private pensions, IRA earnings are tax-exempt, and distributions are taxable.
Also, since 1998, individuals have been permitted to set up so-called Roth IRAs.[14] Unlike regular IRAs, contributions to Roth IRAs are not deductible. Instead, withdrawals are tax-free. Like regular IRAs, however, Roth IRA earnings are tax-exempt.
Also, so-called “Keogh” plans give self-employed workers an ability to save for retirement that is similar to plans sponsored by employers, and these plans allow self-employed workers to contribute more than they could otherwise contribute to an IRA.[15]
[2]The Regulation of Employment-based Retirement Plans
In the more than 30 years since it was enacted, the Employee Retirement Income Security Act of 1974 (ERISA) has been amended numerous times, and a whole regulatory system has grown up to enforce its provisions.[16] The key agencies charged with the administration of ERISA are the U.S. Department of Labor, the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC).
Pension plans must be operated for the exclusive benefit of employees or their beneficiaries, and plan assets generally must be held in a trust. To protect the interests of plan participants, ERISA requires significant reporting and disclosure in the administration and operation of employee benefit plans.[17] In addition, ERISA and the Internal Revenue Code impose many other requirements on retirement plans including, for example, rules governing participation, coverage, vesting, benefit accrual, contribution and benefits, and funding.
[a]Participation
For example, a retirement plan generally may not require, as a condition of participation, that an employee complete a period of service extending beyond the later of age 21 or one year of service.[18] Also, a plan may not exclude employees from participation just because they have reached a certain age (e.g., age 65). Employees can be excluded for other reasons, however. For example, a plan might be able to cover only those employees working at a particular location or in a particular job category.
[b]Coverage
Under the minimum coverage rules, a retirement plan must usually cover a significant percentage of the employer’s work force.[19] Alternatively, a plan may be able to satisfy the minimum coverage rules if it benefits a certain class of employees, as long as it does not discriminate in favor of the employer’s highly compensated employees.
[c]Vesting
Retirement plans must also meet certain minimum vesting requirements.[20] A worker’s retirement benefit is said to be vested when the worker has a nonforfeitable right to receive the benefit. For example, under the 5-year, cliff-vesting schedule, an employee who has completed at least 5 years of service must have a nonforfeitable right to 100 percent of her accrued benefit.[21]ERISA only imposes minimum vesting requirements, and plans are free to use a faster vesting schedule. Nevertheless, most plans use 5-year cliffvesting. In the year 2000, for example, 85 percent of employees in private industry defined benefit plans faced the 5-year cliff-vesting schedule, and hardly any plans provide for immediate vesting or for 100-percent vesting after one year of service.[22]
[d]Benefit Accrual
In keeping with the voluntary nature of our pension system, employers have relatively great freedom in the design of their retirement plans. ERISA does not mandate any specific benefit levels, nor does it require that benefits accrue evenly over time.
When it comes to benefit accrual, there are just a few rules about how benefits must accrue.[23] These rules help ensure that retirement benefits accrue at certain minimum rates, and these ruleslimit the extent to which employers can skew or “backload” benefits in favor of their long-service employees. A typical plan must comply with at least one of three alternative minimum benefit accrual rules. For example, under the so-called “3-percent rule,” a worker must accrue, for each year of participation (up to 33 and 1/3 years) at least 3 percent of the normal retirement benefit that she would receive if she stayed with the employer until age 65. The minimum benefit accrual rules are intended to ensure that long-service employees will earn significant retirement benefits even if they do no stay with a single employer until the end of their careers. All in all, a fair amount of backloading is permitted, but there are limits.
Another benefit accrual rule bars employers from reducing or ceasing an employee’s benefit accruals just because they have reached a certain age (e.g., age 65).[24] Nevertheless, employers are permitted to design their plans in ways that result in benefit reductions that correlate with age, for example, by restricting the number of years of benefit accrual (e.g., 30 years).[25]
[e]Contributions and Benefits
The Internal Revenue Code also imposes limits on contributions and benefits.[26] In 2004, for example, generally no more than $41,000 can be added to the individual account of a participant in a defined contribution plan.[27] Also, the maximum annual amount of elective deferrals that can be made by an individual to a 401(k)-type plan in 2004 is $13,000, although workers over the age of 50 can contribute up to another $3,000.[28]
With respect to defined benefit plans, the highest annual benefit payable that can be paid to a retiree in 2004 is $165,000 or 100 percent of compensation.[29] In that regard, the highest amount of compensation that can be considered in determining benefits in the year 2004 is $205,000.[30]
[f]Funding
Retirement plans must also meet certain minimum funding standards.[31] These rules help ensure that the money needed to pay the promised benefits is set aside in a trust fund where it can earn income until it is used to pay benefits when the employee retires.
[g]Other Requirements
ERISA also imposes extensive fiduciary responsibilities on employers and administrators of employee benefit plans.[32] In addition, so-called “prohibited transaction” rules prevent parties in interest from engaging in certain transactions with the plan.[33] For example, an employer usually cannot sell, exchange, or lease any property to the plan.[34]
Title IV of ERISA created the Pension Benefit Guaranty Corporation (PBGC) and a plan termination insurance program. Defined benefit plans generally pay annual termination insurance premiums to the PBGC. In the event an underfunded plan terminates (for example, because the employer went out of business), the PBGC will guarantee payment of pension benefits to the participants (up to a maximum limit in the year 2004 of $44,386.32 per participant).[35]
[3]Retirement Plan Trends and Problems
Our pension system should be designed to meet the retirement needs of American workers and their families, and it should be designed to help make American workers as productive as possible. This section considers just how well the current pension system meets those goals.
[a]Only About Half of American Workers Have Pensions
Professor Daniel Halperin recently suggested that:
Ideally, every employer would have a plan covering all their employees. Employees would all earn a pension that, when combined with Social Security, would replace their final earnings, and this pension would be indexed for inflation.[36]
Measured against this standard, however, the current pension system must be viewed as a failure. The overall coverage rate for retirement plans has held relatively steady in recent years, with only about half of private-sector employees participating in an employer-sponsored retirement plan. For example, just 48.2 percent of all wage and salary workers age 21 to 64 were participating in an employment-based retirement plan in 2002, up only slightly from the 46.1 percent participating in 1987.[37]
Table 1 provides more details about employer sponsorship of retirement plans in 2002 and worker participation in those plans. At the outset, it is worth noting that of the 151.3 million Americans workers in 2002, just 80.7 million (53.4 percent) worked for an employer (or union) that sponsored a retirement plan, and just 63.2 million (41.8 percent) participated in the plan.[38] Table 1 shows that sponsorship and participation rates can vary dramatically based on such worker characteristics as age, educational attainment, and annual earnings.