A game-changing federal regulation on retirement investment advice may be overturned by the Trump administration, but many in the HR industry expect the spirit of the law to remain, even if the letter of the law is repealed.
The fiduciary rule, put into place by the Obama administration, was designed to require that financial advisors act in the best interest of their clients, to ensure that commissions and other considerations do not sway advisors to promote inferior products.
On Feb. 3, President Trump delayed implementation of the rule and ordered the Department of Labor to review it. His administration is highlighting the fiduciary rule as one of several Obama-era regulations that they say are too burdensome and should be undone.
Yet among industry insiders, there is a feeling that it may be too late to go back — and some suggest that the change in approach will be popular with consumers.
What has changed
In the past, employers have had a fiduciary responsibility to act in the best interest of the employees when creating and managing company-sponsored retirement benefits. With the new rule, financial advisors who help employers and employees pick plans must also meet the “best interest” standard. The new rule is designed to prevent conflicts of interest caused by some commission-based arrangements.
Many in the industry are generally supportive of the new rule. “I believe the genesis of this law is a good faith effort to ensure that investment options are being managed and evaluated based on their performance,” says Brandon Scarborough, senior vice president of Cobbs Allen. Scarborough adds that with some commission arrangements, advisors had a financial incentive to recommend plans that weren't performing as well for the plan holders.
According to Scarborough, a switch from the old “suitability” standard to the fiduciary rule's “best interest” standard will put the interests of consumers first. “All these commissions have to be clearly spelled out, and that's been a long time coming,” he says. Brandon notes that the best interest contract exemption provides a less restrictive arrangement for some investors, but even that requires advisors to outline any conflicts of interest.
The consumer protection elements of the rule may make it popular with plan enrollees, according to Reed Smith, senior vice president and employee benefits practice leader at CoBiz Insurance. “We view it as a potential competitive advantage,” he says. “Why wouldn't your employees want [those protections]?”
Not a perfect solution for everyone
Still, the industry hasn't universally embraced the rule change. Some have raised questions about the effect that switching to fee-based plans, which can be more expensive that commission-based products, would have on smaller investors.
“The fear is that some advisors are not going to want to take on a fiduciary role for smaller accounts who might not be able to afford it,” says Tyler Brocato, senior retirement plan consultant, also with CoBiz.
That concern is echoed by Juli McNeely, who is owner and president of McNeely Financial and a past president of the National Association of Insurance and Financial Advisors (NAIFA). She says that the rule changed the landscape for the small businesses that she works with. “Being in rural Wisconsin, I work with a lot of smaller accounts,” she says. “These individuals weren't candidates for a fee-based plan.”
However, despite being a commission-based brokerage for 45 years, McNeely says her company is now committed to meeting the new requirements. “We thought the time was right,” she says. “We were moving that way, but we still don't think it makes sense for everybody.”
The Trump administration steps in
On Feb. 3, President Trump issued a memorandum directing the DOL to review the fiduciary rule (called the Fiduciary Duty Rule in his statement) and recommend whether it should be repealed or revised. The DOL has six months to issue its recommendation.
“One of the priorities of my administration is to empower Americans to make their own financial decisions, to facilitate their ability to save for retirement, and build the individual wealth necessary to afford typical lifetime expenses, such as buying a home and paying for college, and to withstand unexpected financial emergencies,” Trump said in the memorandum. “[The fiduciary duty rule] may significantly alter the manner in which Americans can receive financial advice, and may not be consistent with the policies of my administration.”
The industry reaction was mixed. NAIFA and some other advisor groups made statements in support. “NAIFA has expressed a number of concerns about the rule, which would impose burdensome and costly restrictions and requirements on advisors and would limit middle- and lower-income retirement savers’ access to services and advice,” says NAIFA President Paul Dougherty. “We look forward to offering the administration any information or assistance they may require as they review the rule.”
But other investment experts continued to say the fiduciary rule's impact was already made. In a Forbes commentary, David Bahnsen, chief investment officer and managing director of The Bahnsen Group, part of HighTower Advisors, said that regardless of governmental actions, the market will ultimately validate the move toward more transparency.
“In the end, those registered investment advisors bound by the fiduciary standard can claim exclusivity in the marketplace as to who actually must act in their client's best interests, who must avoid conflict of interests, and who has provided total transparency to fees and compensation,” he wrote. “A fiduciary standard of care will be good for the financial services industry, and total clarity and transparency around compensation will build faith and credibility in the financial advice profession.”
What it means for employers, brokers and advisors
Terry Connerton, an attorney who specializes in employment law and a spokesperson for the Society for Human Resource Management, notes that the rule has already had a wide-ranging effect. “Since the publication of the new regulations, and even before, a lot of companies operating in the retirement space have devoted significant time and resources, and changed their business practices and pricing models, to comply with the regulations,” she says. “Whether the new fiduciary rules go into effect or not will likely not change their new business operations.”
Others agree that advisors who have switched from the “suitability” to “best-interest model” are not likely to switch back. “Most companies prepared for it, and the ones that weren't got out of the market,” notes Brocato. “I think anytime you put in something that is more consumer-friendly, and then you take it away, that raises some red flags.”
Connerton says the change will require companies to look closely at their policies and plans. This can include discussing with providers their fiduciary status, fees and compensation, and a review of what plan options are available, as well as how plans are selected. She says, “I had many clients in 2016 conduct an abbreviated request for proposal to determine market rates for fees and expenses; suggested portfolios; and new services.”