DOL Finalizes Retirement Security Rule – Effective September 2024

The U.S. Department of Labor has finalized its Retirement Security Rule, which updates the definition of an “investment advice fiduciary” under the Employee Retirement Income Security Act and the Internal Revenue Code.

The determination of who is a fiduciary is important because ERISA protections hinge on fiduciary status. ERISA imposes strict requirements on persons deemed to be fiduciaries and severe consequences for breaching fiduciary duties. The updated definition of “investment advice fiduciary” takes effect on September 23, 2024.

The current definition was written when individual retirement accounts were less common and before 401(k) plans existed. Before the changes, there was a five-part test before financial advisers were held to a fiduciary standard―and one part provided that the advice had to be made on a regular basis, meaning, for example, that one-time recommendations on 401(k) rollovers potentially were unprotected.

Under the new rule, investment advisers will not be able to provide advice that affects their compensation unless they ensure investors are protected. Policies have to be put in place to mitigate conflicts, and investment advisers must advise customers that they are fiduciaries. They cannot place their interests ahead of the investor when the investor pays them for advice on individual retirement accounts, 401(k)s and similar categories of tax-advantaged dollars.

Investment advice fiduciaries must:

  1. Give advice that is prudent and loyal;
  2. Avoid misleading statements about conflicts of interest, fees and investments;
  3. Follow procedures designed to ensure advice given is in an investor’s best interest;
  4. Charge no more than is reasonable for their services; and
  5. Give investors basic information about any conflicts of interests.

The rule covers all financial professionals, including brokers and insurance salespersons, who describe themselves as trusted advisers.

The Biden administration says the rule will help eliminate junk fees in the consumer financial markets and make sure that investment advisers do not put their interests before their clients’ interests.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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