DOL puts ROI ahead of ESG for ERISA plans
While ESG investing is soaring in popularity, there are major hurdles for that popularity to carry over to employer-sponsored retirement plans.
On June 23, 2020, the Department of Labor (DOL) announced a proposed rule to provide further guidance for Employee Retirement Income Security Act (ERISA) plan fiduciaries interested in environmental, social and governance (ESG) investing. As ethical investing gains traction, plan managers have begun exploring socially responsible investment options for defined contribution and defined benefit retirement plans. But according to the new proposal by the DOL, those ethical investment strategies must be driven by one underlying factor: financial returns.
The DOL’s proposed rule seeks to codify the department’s long-standing position that, while plan fiduciaries are not prohibited from ESG investing, the paramount focus of plan fiduciaries must be “solely on pecuniary factors.”
Thus, the DOL’s proposed rule prohibits plan fiduciaries from sacrificing investment returns or taking on additional investment risks to promote non-pecuniary considerations that may be offered by ESG investing.
The DOL acknowledges that there may be instances when “environmental, social, corporate governance, or other similarly oriented considerations are pecuniary factors,” but “only if they present economic risks or opportunities that qualified investment professionals would treat as material economic considerations under generally accepted investment theories.”
In the preamble to the proposed rule, the DOL gives the examples of “a company’s improper disposal of hazardous waste” or “dysfunctional corporate governance.”
The proposed rule also seeks to codify what has commonly been referred to as the “tie-breaker” or “all things being equal” test: plan fiduciaries are allowed to consider non-pecuniary factors in selecting between “economically indistinguishable” investments (i.e., the non-pecuniary factors may be the tie-breaker).
The DOL specifically requests comments on this portion of the proposed rule, while opining that “the Department expects that true ties rarely, if ever, occur.”
If the tie-breaker test is used to select an investment based on a non-pecuniary factor (such as environmental, social or corporate governance considerations), then the proposed rule imposes additional documentation requirements on ERISA plan fiduciaries.
Specifically, plan fiduciaries will be required to document why the investments were determined to be indistinguishable and why the selected investment was chosen.
The proposed rule also imposes additional requirements on defined contribution plans. Plan fiduciaries may offer ESG investments as menu options in self-directed individual account plans only if those ESG investments are selected based on objective risk-return criteria.
And even then, the plan fiduciaries must meet additional documentation requirements and cannot include the ESG investment as part of the plan’s qualified default investment alternative.
Overall, the DOL’s proposed rule suggests that ESG investing will remain scrutinized by the department and indicates the department’s skepticism of the appropriateness of such investments in ERISA plans.
The additional documentation requirements may dissuade plan fiduciaries from seeking to include ESG investments despite growing pressure from plan participants to include such options.
Further, a failure to meet the documentation requirements may expose plan fiduciaries to liability and litigation risks. For all of these reasons, while ESG investing is soaring in popularity, there are significant hurdles for that popularity to carry over to ERISA plans.
