Months ago, the Department of Labor released its latest take on the fiduciary standard for investment advice professionals. Now, we're beginning to see details emerge that can help advisors understand their obligations under the new standard.
The most recent round of guidance paints a clear picture with respect to the Labor Department's focus on rollover transactions, the new "regular basis" test and the fiduciary standard generally. Going forward, advisors should continue to monitor Labor releases for information about their obligations — and whether they'll become subject to the new investment advice fiduciary standard for offering clients rollover advice.
Background
In 2020, the department released a new prohibited transaction exemption (PTE) as its long-awaited follow-up to the 5th Circuit's removal of the 2016 fiduciary rule. The exemption grants relief to financial advisors and institutions that provide investment advice (including retirement-related and rollover advice) if the terms of the PTE are satisfied.
Generally, to qualify for relief under the new fiduciary PTE 2020-02, advisors must provide advice in accordance with impartial conduct standards, which generally include standards related to (1) acting in the client's best interests, (2) reasonable compensation, (3) refraining from misleading statements, (4) disclosure, (5) conflict mitigation and (6) retroactive compliance review.
Initially, for fiduciary investment advice standards to apply, a person who is not otherwise a fiduciary must (1) render advice as to the value of securities or other property, or make recommendations as to the advisability of investing in, purchasing, or selling securities or other property (2) on a regular basis (3) pursuant to a mutual agreement, arrangement or understanding with the plan, plan fiduciary or IRA owner that (4) the advice will serve as a primary basis for investment decisions with respect to plan or IRA assets, and that (5) the advice will be individualized based on the particular needs of the plan or IRA. This is the five-part test that applied prior to the 2016 Labor Department fiduciary rule.
The Labor Department has been clear from day one that offering rollover advice can cause an advisor to become subject to fiduciary standards. One point of interest, however, has been whether a single piece of rollover advice would be sufficient to satisfy the "regular basis" prong of the five-part test.
Latest Round of DOL Guidance
Initially, the latest Labor FAQ confirmed that the "regular basis" prong of the five-part investment advice fiduciary test is not satisfied when there is a single, discrete piece of advice recommending rolling over assets from a retirement plan to an IRA. However, the regular basis prong is satisfied when advice to roll over plan assets occurs as the beginning of an intended ongoing future relationship between an individual and investment advice provider.
