Most of the industry insiders familiar with the extent of the Pension Benefit Guaranty Corp.’s multiemployer plan deficit expected Congress to do no more than extend provisions of the 2006 Pension Protection Act affecting underfunded plans.
Few expected lawmakers to go as far as they did, nor to act as soon as they did. Highly controversial issues such as PBGC premium increases and the power to suspend benefits would be considered by the next Congress – or so many presumed.
But the 160-page multiemployer amendment – authored by Rep. John Kline, Republican chairman of the Education and Workforce Committee, and Rep. George Miller, Democrat and soon-to-be retired ranking member – accelerated everything.
The Senate must approve the legislation, too, but what follows is a breakdown of the five major areas in the law, and how each will influence multiemployer plans, sponsors and their beneficiaries.
1. Amendments to the PPA
A lot of pension experts expected Congress to take the easy way out, pass a one-year extension to the funding rules in the PPA, and kick the can of reform down the road.
But the reform makes those funding rules permanent. It will also allow plans that expect to reach “critical status” in the next five years to elect to be categorized as critical in the current year. Generally, critical status means plans are less than 65-percent funded, unable to pay benefits within five to seven years, or are expected to have a funding deficiency within four to five years.
The new law also eliminates the penalty for sponsors who increase contributions to an underfunded plan.
2. Mergers and partitions
The PBGC will now have the authority to merge plans together, but only if they determine the merger is in the interests of the participants of at least one of the plans, and not adverse to the other plan or plans in the merger.
Also, PBGC now can grant plans permission to partition when their status is either in critical or declining status. This will have the effect of quarantining the most underfunded sponsors, protecting healthier sponsors from having to absorb greater funding responsibilities.
Sponsor wanting to partition would have to prove they had made the maximum benefit adjustments to avoid insolvency.
The PBGC would have to certify that partitioning a sponsor from one plan will not impair its obligations to other plans.
3. Premium increases
Critics of how Congress has set funding obligations, most notably former PBGC director Josh Gotbaum, have insisted multiemployer plan premiums must be increased to address MEP’s funding deficit.
The new amendment grants Gotbaum his wish. The per-participant premium would be doubled, from the current $13 a head to $26, and it would take affect at the beginning of January.
The PBGC would have more than a year to collect the new premiums and report to Congress, by June of 2016, what affect the increases have had on its 10- to 20-year funding obligations.
If the premium increase proves insufficient, the law then says the PBGC must propose a revised premium schedule.
In effect, that would give PBGC the authority to set premiums that it has been asking the Obama administration to grant it.
4. Critical and declining status
The PPA famously created funding status zones (critical, seriously endangered, endangered and healthy), classifying a plan’s state of health and imposing certain requirements upon those plans most underfunded.
The new law creates a new plan status: “critical and declining.”
Plans fall into the new classification if they are projected to become insolvent in the next 15 years, or if they are expected to be insolvent in 20 years and have a ratio of inactive-to-active participants exceeding 2 to 1, or if the plan is less than 80 percent funded.
5. Benefit suspensions
The new classification of underfunded plans leads into what will likely be the law’s most-disputed provision.
Plans in critical and declining status can now apply to Treasury to voluntarily suspend benefits.
That means plan trustees now have the power to cut existing retirees’ pensions, subject to several limitations.
For one, no benefit can be cut below 110 percent of the PBGC’s guaranty, the highest of which is about $13,000 annually.
Benefit suspension will be phased out for those retirees age 75 at the time of implementation, and those age 80 and older will not be affected. All disability pensions are exempted as well.
Trustees will be required to take age, number of years of service, and participants’ benefit histories into account when assessing suspensions.
They’ll also have to seek approval from Treasury, which must approve the cuts within 225 days after the sponsor’s application.
If Treasury, in consultation with the Department of Labor and PBGC, approves the benefit cuts, the decision will be subject to a vote by union members within 30 days of the decision.
A majority of all participants — and beneficiaries — will be required to override the cuts. However, if participants do vote down the cuts, Treasury has 14 days to determine whether the plan is “systemically” important, defined as resulting in $1 billion or more in liability costs to PBGC unless the benefit suspensions are implemented.
If deemed systemically important, Treasury then will have the power to implement the benefit suspensions, or modify them in a manner that would avert the plan’s insolvency. In other words, the government gets the last word on benefit cuts.