Beware Of & Manage Pension Funding Risk & Reporting Amid Economic Instability

September 15, 2021

With recent economic and other business disruptions causing insolvency or other business distress for many businesses, companies sponsoring or contributing to pension plans subject to the Pension Benefit Guarantee Corporation(“PBGC”) funding and insurance rules and those involved in their leadership, sale, liquidation or other resolution should use care to monitor these plans, their funding, and their funding obligations to avoid becoming subject to financial liabilities that typically result of these responsibilities are the mishandled.

As part of these safeguards, Section 4043 of ERISA requires that plan administrators notify PBGC of the occurrence of certain events that may present a risk to a plan sponsor’s ability to continue a pension plan. 

Reportable events likely to require a reportable event filing include the following events:

  • active participant reduction;
  • failure to make required funding payments; inability to pay benefits when due;
  • distribution to a substantial owner;
  • change in controlled group;
  • liquidation;
  • extraordinary dividend or stock redemption;
  • application for minimum funding waiver;
  • loan default;
  • insolvency or similar settlement;
  • large cumulative funding under payments; or
  • total under payments with interest in excess of $1 million. See 29 CFR Part 4043.

In most cases, reporting is due 30 days after the event occurs (i.e., “post-event” reporting). However, in certain cases involving nonpublic companies with large underfunding, advance notice of certain events must be given to PBGC. 29 CFR §4043.61.

Historically, reportable event filings could be made either in paper or since 2016, electronically. After September 30, 2021, PBGC requires all reportable event filings be prepared and submitted via the portal. Paper forms will remain on PBGC’s website for illustrative purposes only. The PBGC says the portal application is secure.

As funding or other violations of the of the funding, reporting and other rules l triggers significant penalties, businesses that sponsor or contribute to PBGC regulated pension plans, their plan administrators and fiduciaries, creditors, investors and trustees should use care to monitor plans for these events and ensure timely filings and other actions are taken minimize penalty and other liability risks.

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In addition, businesses that are commonly controlled or affiliated, Investing in, by assets from, or involved in the resolution of businesses current or past participation in pension plan subject to the PBGC’s rules should carefully assess and manage their potential pension liability as the control group and lien rules create risks for these entities.

This article is republished by permission of the author, Cynthia Marcotte Stamer.  To review the original work, see here.

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years working as an on demand, special project, consulting, general counsel or other basis with domestic and international business, charitable, community and government organizations of all types, sizes and industries and their leaders on labor and employment and other workforce compliance, performance management, internal controls and governance, compensation and benefits, regulatory compliance, investigations and audits, change management and restructuring, disaster preparedness and response and other operational, risk management and tactical concerns.

Widely recognized for her work with health plan, managed care and other heath insurance, health care and life sciences health and other data and technology and related matters, organizations, she has worked extensively with other employer, employee benefits, insurance, trade and other association, financial, transportation, manufacturing, energy, real estate, accounting and other services, public and private academic and other education, hospitality, charitable, civic and other business, government and community organizations. and their leaders, on health and managed care and other employee benefits, related program design, documentation, contracting, insurance, administration, technology, compliance and internal controls, investigations and defense, regulatory and public policy and related matters. Ms. Stamer also has extensive experience published and spoken extensively on these and other human resources, employee benefits, compensation, worker classification and other workforce and other services; insurance; health care; workers’ compensation and occupational disease; business reengineering, disaster and distress; and many other performance, risk management, compliance, public policy and regulatory affairs, and other operational concerns. 

A former lead advisor to the Government of Bolivia on its pension  project, Ms. Stamer also has worked internationally and domestically as an advisor to business, community and government leaders on these and other legislative, regulatory and other legislative and regulatory design, drafting, interpretation and enforcement, as well as regularly advises and represents organizations on the design, administration and defense of workforce, employee benefit and compensation, safety, discipline, reengineering, regulatory and operational compliance and other management practices and actions.

Ms. Stamer also serves in leadership of a broad range of professional and civic organizations and provides insights and thought leadership through her extensive publications, public speaking and volunteer service with a diverse range of organizations including as Chair of the American Bar Association (“ABA”) Intellectual Property Section Law Practice Management Committee, Vice Chair of the International Section Life Sciences and Health Committee, Past ABA RPTE Employee Benefits & Other Compensation Group Chair and Council Representative and current Welfare Benefit Committee Co-Chair, Past Chair of the ABA Managed Care & Insurance Interest Group, past Region IV Chair and national Society of Human Resources Management Consultant Forum Board Member,  past Texas Association of Business BACPAC Chair, Regional Chair and Dallas Chapter Chair, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation and many others.

For more information about these concerns or Ms. Stamer’s work, experience, involvements, other publications, or programs, see www.cynthiastamer.com,  on  Facebook, on LinkedIn or Twitter or e-mail here.

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