对于美国劳工部(Labor Department)修订“受托人”定义的提议，金融界和退休界需要知道的最重要的一点是:不要恐慌。基金经理、经纪人、记录管理员和其他与退休计划打交道的供应商认为，该提案的措辞过于宽泛和不明确，会让计划发起人不必要地对他们产生怀疑。这些供应商声称，他们将不得不注意每一个字，因为他们所说的任何话都可能在不经意间将自己置于受托人的角色。为什么，客户甚至会认为他们是在推销什么东西。“我们担心拟议的规则将产生重大的意外后果，并将严重破坏既定的服务惯例，严重限制计划发起人和其他指定受托人获得他们期望从服务提供商获得的信息和支持的能力，”T. Rowe Price在一封典型的评论信中写道。养老金计划的官员也有这样的担忧，不过他们也认为他们的供应商反应过度了。韬睿惠悦(Towers Watson)高级顾问罗宾•克雷迪科(Robyn Credico)表示:“如果我是计划发起人，我希望清楚地知道谁是受托人，谁不是，以及我的责任是什么。”公平地说，供应商承认，劳工部更新1975年制定的规则可能是合理的。“35年前，我们甚至还没有参与者指导的401(k)计划，”SPARK研究所(一个记录保存者的行业组织)的总法律顾问拉里•戈德布鲁姆指出。美国劳工部(Labor Department)提议，“更广泛地定义一个人为计划或个人参与者提供投资建议而被视为‘受托人’的情况”。 One major change would be that a vendor could be a fiduciary based on one incident of advice-offering, whereas the current law requires that advice be proferred on a “regular basis.” Furthermore, no longer would both sides have to have a “mutual understanding” that any advice “will serve as a primary basis for investment decisions.” In the decades since the rule was written, the Labor Department says, new types of advisors have emerged who “significantly influence the decisions of plan fiduciaries” without falling under the official definition. Thus, these advisors “may operate with conflicts of interest that they need not disclose.” To put it another way: Plan sponsors need to remember that the firms plying them with employee education booklets, manager analytics, stock market insights, cute little online tools, and other information are doing this to make money. They are not the sponsors’ BFFs. But critics contend that the new rules sweep in too many activities — possibly even standard types of participant education — under the rubric of fiduciary. That could make vendors legally liable for poor returns if plans or participants make investment decisions using information that was never meant to be followed line by line. In self-protection, Goldbrum of SPARK predicts, “a lot of service providers are going to say, ‘I can’t run the risk that after the fact, someone is going to say I’m a fiduciary.’ They will limit the amount of information and education they provide.” Credico of Towers Watson says this could hurt plan sponsors. “There’s some pretty good stuff that I’d hate to see sponsors lose,” she says. Moreover, providers will undoubtedly raise fees to cover the increased potential liability – perhaps triple or quadruple, by one expert’s calculations. Officially, the Labor Department estimates that it will cost providers around $2 million per year for implementation, compliance, and review. For all the worrying, there is zero chance that the proposals will be adopted as written. Any such government proposal to change existing rules is always followed by official comments, unofficial discussions, and revisions. In this particular case, the Labor Department has already extended until April 12 the “comment ‘period” during which industry can respond, and agency officials have said they don’t want the rewrite to mean higher fees for participants. Meanwhile, plan sponsors can best protect themselves by getting information from lots of reliable sources, reading carefully, using common sense, and always keeping in mind the sources’ probably motivations. And that’s advice that works for anyone, any time, with or without a government regulation.
弗兰·霍桑是获奖作品《养老金倾销:华尔街的原因、残骸和利害关系》(彭博社)和《FDA内幕:我们服用的药物和我们吃的食物背后的商业和政治》(约翰·威利父子出版社)的作者。她定期撰写有关金融、医疗保健和商业道德方面的文章。