The U.S. Department of Labor – Proposed Rule Addressing ESG Investment Selections by Fiduciaries – the Drama Continues As Agency Downplays Importance of ESG

By Hank Boerner – Chair & Chief Strategist – G&A Institute

August 9 2020

In the early 1970s, Congressional hearings featured allegations of abuses by managers of corporate pension funds taking actions to systemically deny men and women approaching retirement age their promised benefits.  A law was passed to protect plan beneficiariesThe Employee Retirement Income Security Act of 1974.

This was intended by the Congress of that day to create standards for private-sector plans to protect the financial and health of beneficiaries of corporate plans.

The U.S. Department of Labor was designated is the primary designated arm enforcing “ERISA”,  charged with “protecting the interests of employee benefit plans participants (workers) and their beneficiaries”.

Other agencies have plan oversight responsibilities as well – the U.S. Treasury Department (the IRS) and the Pension Benefit Guaranty Corporation (PBGC).

PBGC is like the FDIC protection for bank customers’ money; when a corporate pension plan fails, the PBGC assumes responsibility for providing retirement benefits to retirees. When a company with a retirement plan goes belly up, filing bankruptcy, or giving up responsibility for the plan, the PBGC takes over to help the plan’s beneficiaries (they don’t get all that was promised by the plan when it was managed by the company they worked for).

Among other elements of the ERISA law and operating rules, there are standards set for fiduciaries and managers of worker retirement plans and welfare benefit plans.

ERISA has been updated since passage 40+ years back and the DOL rules have changed over time.  So have related Internal Revenue Service rules.  In 1978 the Internal Revenue Code was amended to allow taxpayers to have a tax-deferred, defined, voluntary retirement plan of their own – the familiar 401 (k) plan that millions participate in.

In the latest summary from the DOL’s Employee Benefits Security Administration of DOL (“EBSA“) for FY 2013(!) — ERISA rules [then] applied to 684,000 retirement plans, 2.4 million health plans and 2.4 million additional welfare benefits.

These plans covered 140 million workers and beneficiaries – at the time, that was about half of the American workforce – and assets under management of the plans exceeded US$7 trillion.

To simplify what follows here, the rules adopted by federal regulators are intended to explain and enforce the statute passed by Congress – in this case, protection of worker rights and oversight of fiduciaries managing workers’ assets in plans.

There is a structured process for creating the enforcing agency rules-of-the-road for those organizations being overseen (for ERISA, fiduciaries, plan managers) and these rules could be changed from time-to-time and also be “interpreted” by regulators through communications intended to clarify the rules.

ESG Investment and the Department of Labor Perspectives

As “sustainable” or “ESG” investing became a preferred approach for individuals in plans and managers of plans, many more institutions and individuals preferred those investments, alongside or instead of more traditional investments.

Investors want to be able to invest in an ESG-themed mutual fund or ETF along with or instead of a traditional version that may track a benchmark of the same type.

Example:  There are many investment managers whose fund track the widely-used S&P 500 benchmark (from S&P Global) and investable products with an S&P 500 ESG benchmark.

State Street a few days ago launched an S&P 500 ESG Exchange Traded Fund (ETF) “to provide investors an opportunity to tap into ESG investing at the core of their portfolio” (with a very low expense ratio). This “EFIV” tracks the new S&P 500 ESG Index.

SSgA explains: “ESG investing is approaching a critical inflection point…the collective call for change is growing louder and investor increasingly taking a stand through their investment choices.”

How do the regulators of ERISA react to such progress?  To the call for change?  To respond to investors’ call for action?

By moving backward in rule-making with changes in rules to make it more difficult for plan managers and beneficiaries to invest in ESG vehicles.

To be sure, rules are subject to change. The DOL’s first guidance on ESG investment issues as issued back in 1994.

More recently, in 2008 (during the Administration of President George W. Bush) guidance appeared to be designed to restrict ESG investments by plan fiduciaries.

In 2015 (during the Administration of President Barack Obama) DOL guidance gave the green light to ESG investments…if the investment is appropriate based on economic considerations including those that may derive from ESG factors. (See our perspectives here from November 2015: http://ga-institute.com/Sustainability-Update/big-news-out-of-the-u-s-department-of-labor-for-fiduciaries-opportunity-to-utilize-esg-factors-in-investment-analysis-and-portfolio-management/)

And now in 2020, in June DOL’s EBSA proposed a “new investment duties rule” with “core additions” to the regulations.  (“Financial Factors in Selecting Plan Investments” — this to address “recent trends involving ESG investing”).

Among the comments of DOL that really wrankled the ESG investor universe:

  • New text was added to codify DOL’s “longstanding position” that plan fiduciaries must select investments based on financial considerations relevant to the risk-adjusted economic value of an investment (or “course of action”).
  • The reminder that “Loyalty” duty prohibits fiduciaries from subordinating interests of plan participants and beneficiaries to “non-pecuniary goals”.   ESG factors could be “pecuniary” factors — but only if they present economic risk/opportunity under generally-accepted investment theories.
  • New text was added on required investment analysis and documentation for the “rare circumstance” when fiduciaries are choosing among “truly economically-indistinguishable” investments.  (Huh?)
  • A provision that fiduciaries must consider “other” available investments to meet prudence and loyalty duties.
  • A new provision for selection of investment alternatives for 401-K plans describes what is required for “pursuing” one or more ESG-oriented objectives in the investment mandate (or include ESG “parameters” in the fund name).

DOL Comments On These:

“ERISA plan fiduciaries may not invest in ESG vehicles when they understand an underlying investment strategy…is to subordinate return or increase risk for the purpose of non-financial objectives.”  And

“Private [Sector] employer-sponsored retirement plans are not vehicles for furthering social goals or policy objectives…not in the interest of the plan…ERISA plans should be managed with unwavering focus on a single, very important social goal: providing for the retirement security of American workers.”

After the rule changes were published, numerous investors pushed back – some summaries for you that were published on the 401K Specialist web platform of the responses of some fiduciaries who object to the proposed rule (“Commenters Hammer DOL of Proposed  ESG Rule”).

More than 1,500 comments have been submitted so far to DOL, calling for changes in the proposed rule, withdrawal, and the very short comment period (just 30 days, ended August 3, vs. the usual 90 days).

Investor/Fiduciary Pushback:

T. Rowe Price:   The proposed rule is attempting to solve a problem that does not exist. Worse, the proposed rule discourages fiduciaries from taking into account ESG factors that should be considered.

ICCR/Interfaith Center on Corporate Responsibility:  The rule would impose significant analytical and documentation burdens on fiduciaries of benefit plans governed by ERISA wishing to select (or allow individual account holders to select) investments that use ESG factors in investment analysis, or that provide ESG benefits (signed by 138 member institutions).

ESG Global Advisors: The Proposal has misunderstood and/or mischaracterized the nature and purpose of ESG integration…this is likely to lead to confusion for ERISA fiduciaries and additional costs to plan savers. Plan fiduciaries will struggle to fulfill their obligation to integrate all financially-material ESG risk factors into their investment process.

Morningstar: The Department’s rule is out of step with the best practices asset managers and financial advisors use to integrate ESG considerations into their investment processes and selections. The proposed rule would…erect barriers to considering ESG factors that many financial professionals consider as a routine part of investment management…

Voya Financial Inc.: The Proposal is fundamentally flawed for two reasons…among the many qualitative factors an ERISA fiduciary may appropriately consider…the Proposal singles out ESG factors and subjects them to special tests…second, the Proposal fails to account for the positive effect on investment behavior that the availability of ESG-focused investment options can have…

American Retirement Association: …appropriate investments that include ESG factors should not be prohibited from qualifying as Qualified Default Investment Alternatives (“QDIAs”)…

The Wagner Law Group:  The proposed amendment is inconsistent with existing law and guidance…it would require fiduciaries to only consider pecuniary factors instead of using their judgment and discretion to evaluate investments under the totality of circumstances…a narrow list of permissible factors is inconsistent with the notion that prudence is not determined by a checklist and is a fact-specific determination…

BlackRock:  …the Proposal creates an overly prescriptive and burdensome standard that would interfere with plan fiduciaries’ ability and willingness to consider financially-material ESG factors…we urge DOL to engage with the industry to understand how investment options incorporating ESG factors are used in ERISA plans…

Members of Congress – the body that passed ERISA during its 93rd session in 1974 – reacted along partisan lines.

Republican members of the House Committee on Education and Labor submitted a letter of support of the DOL action.

Democrat Party members (41 of them) of the House and 20 members of the House Education and Labor Committee expressed opposition to the rule changes.

The Securities & Exchange Commission is looking at ESG investments as well – soliciting public comment “for the appropriate treatment for funds that use terms such as ESG in their name and whether the terms are likely to mislead investors” (also in the Federal Register post).

In May 2020 the SEC Investor Advisory Committee / Investor-as-Owner Subcommittee issued their perspectives on ESG disclosure:  https://www.sec.gov/spotlight/investor-advisory-committee-2012/recommendation-of-the-investor-as-owner-subcommittee-on-esg-disclosure.pdf

There are more details for you here (the investor response summaries): https://401kspecialistmag.com/commenters-hammer-dol-on-proposed-esg-rule/

The Department of Labor’s EBSA proposal highlights are here as published in the Federal Register, June 30, 2020: http://ga-institute.com/Sustainability-Update/big-news-out-of-the-u-s-department-of-labor-for-fiduciaries-opportunity-to-utilize-esg-factors-in-investment-analysis-and-portfolio-management/

Notes:  The Secretary of Labor is Eugene Scalia, a nominee of President Donald Trump.

Acting Assistant Secretary for EBSA is Jeanne Klinefelter Wilson (appointed in June 2020).

There is an ERISA Advisory Council with six members.  Effective July 14, 2020:

  • Glenn Butash is chair; he is managing counsel at Nokia Corp.
  • David Kritz is vice-chair; he is deputy counsel at Norfolk Southern Corp.
  • John Harney is partner at law firm O’Donoghue and O’Donoghue.
  • Peter Wiedenbeck is Washington University School of Law professor.
  • James Haubrock is CPA and shareholder, Clark Schaefer Hackett.
  • Lisa Allen is compliance consultant, Altera Group.

Stay Tuned:  We will update you when decisions are announced by the Department of Labor.

Titles Matter to Provide Context and Direction – For Corporate Leaders and the Providers of Capital

May 14 2020

by Hank Boerner – Chair & Chief Strategist – G&A Institute

Shorthand terms in business and finance do matter – the “titling” of  certain developments can sum up trends we should be tuning in to.  Some examples for today: Sustainable Capitalism  – Stakeholder Primacy – Sustainable Investing – Corporate Sustainability – Corporate ESG Performance Factors – Environmental Sustainability – Corporate Citizenship…and more.

These are very relevant and important terms for our times as world leaders grapple with the impacts of the coronavirus, address climate change challenges, as well as addressing conditions of inequality, have/have not issues, questions about the directions of the capital markets, ensure issuer access to long-term capital…and more.  And, as influential leaders in the private, public and social sectors consider the way forward when the coronavirus crisis begins to wind down.

For investors and corporate sector leaders, the concept of shareholder primacy was more or less unchallenged for decades after World War II with the rise of large publicly-traded corporations – General Electric! — that dominated the business sector in the USA and set the pace other companies in the capital markets.

But as one crisis followed another – the names are familiar — Keating Five S&L scandal, Drexel Burnham Lambert and junk bonds, Tyco, Enron, WorldCom, Adelphia Cable, Arthur Andersen, the Wall Street research analysts’ debacle (Merrill Lynch et al), Lehman Bros and Bear Stearns, Turing Pharmaceutics, on to Wells Fargo, Purdue Pharma and its role in the Opiod crisis – over time, increasing numbers of investors began to seriously adjust they ways that they evaluate public companies they will provide vital capital to in both equities and fixed-income markets.

Investors today in this time of great uncertainty are focused on: which equity issue to put in portfolio that will stand the test of time; whose bonds will be “safe”, especially during times of crisis; which corporate issuer’s reputation and long-term viability is not at risk; where alpha may be presented as portfolio management practices are challenged by macro-events.

This is about where the money will be “safer” overall, and provide future value and opportunity for the providers of capital – because there is great leadership in the board room and executive offices and resilience in crisis is being demonstrated.

As we think about this, the questions posed in context (virus crisis all around) are:  Why has sustainable investing gone mainstream?  What can savvy boards and C-Suite leaders do to exert leadership in corporate sustainability?  Where is sustainable capitalism headed?  How do we identify great leadership in the corporate sector in times of crisis?

Our choice of featured stories up top for you this week provide some interesting perspectives on these questions.

And, we’ve tried to illustrate the embrace of sustainability as a fundamental organizing principle today of great corporate leaders.  As well as explaining the continuing embrace of sustainable investing approaches of key providers of capital as a strategic risk management discipline — and proof of concept of acceptance of stakeholder primacy / sustainable capitalism in the 21st Century.

The other stories we’ve curated for you this issue of our newsletter help to broaden these perspectives that are offered up in these challenging times from thought leaders.

As the ancient blessing/curse goes:  May we live in interesting times.

Featured Stories – The Two Critical Halves of Sustainable Capitalism, Issuers and Providers of Capital…

Concept: A well-structured sustainability committee not only serves a critical coordinating function, but also steers sustainability right to the heart of the company and the company’s strategy. Let’s take a look at how boards at some of the world’s leading companies have tackled this…

How Can Boards Successfully Guide a Transition to Sustainable Business?
Source: Sustainable Brands – The UN’s Sustainable Development Goals are set to unlock $12 trillion in new business opportunities by 2030. Yet many companies are still stuck in the past. Over the next decade, businesses can either adapt and thrive or deny and, says the organization…

The evidence suggesting that boardrooms should prioritize sustainability is growing rapidly. On the one hand, there are increased risks associated with not prioritizing sustainability. On the other hand, the figures show the huge opportunities sustainability offers businesses. As a result, more and more, sustainability is positioned at the top of boards’ agendas.

Boards must put sustainability at the top of their agenda to thrive
Source: GreenBiz – Amidst the global COVID-19 crisis, there have also been glimmers of hope. A significant one is its impact on climate change. It’s estimated that global carbon emissions from the fossil fuel industry could fall by 2.5 billion…

During a recent CECP CEO Roundtable, current and former CEOs gathered virtually and shared insights from their perspectives on the business landscape. In these informative discussions, one executive noted that leadership, more so than having the right systems in place, is and will be integral as we navigate uncharted territory:

Pivoting with Moral Leadership
Source: CECP – During a recent CECP CEO Roundtable, current and former CEOs gathered virtually and shared insights from their perspectives on the business landscape. In these informative discussions, one executive noted that leadership, more so…

Bears watching:  On 8 April 2020 the European Commission published a consultation paper on its renewed sustainable finance strategy (the “Sustainability Strategy”). The Sustainability Strategy is a policy framework forming a key part of the European Green Deal, the EU’s roadmap to making the EU’s economy sustainable, including reducing net greenhouse gas emission to zero by 2050. Despite the inevitable recent shift of focus to measures dealing with the COVID-19 crisis, this remains a top EU priority and the outcome of this consultation may significantly affect :

European Commission Consultation on the Renewed Sustainable Finance Strategy
Source: National Law Review – The Sustainability Strategy is a policy framework forming a key part of the European Green Deal, the EU’s roadmap to making the EU’s economy sustainable, including reducing net greenhouse gas emission to zero by 2050. Despite the…

Examining Corporate Citizenship: How Ride-sharing Companies Respond to COVID-19? What They Promise – and How It Turns Out

G&A Institute Team Note
We continue to bring you news of private (corporate and business), public and social sector developments as organizations in the three societal sectors adjust to the emergency.  This is post #12 in the series, “Excellence in Corporate Citizenship on Display in the Coronavirus Crisis” – April 6 2020    #WeRise2FightCOVID-19   “Corporate Purpose – Virus Crisis”

By Yuyou Chen – Sustainability Reporting Analyst Intern at G&A Institute

Just four months after surfacing in Wuhan, China, the Coronavirus has been spread all over the world and affected about 1.3 million people in total to date.

Up until April 6, 2020, the Centers of Disease Control and Prevention (CDC) has reported 330,8919 COVID-19 cases and 8,910 deaths in the United States. CDC has recommended statewide citizens to practice social distancing and working from home.

With less on-site working, there is a sharp decline in the usual daily commuter activity. According to the Cities Commuter Activities report by Visual Capitalist, Los Angeles and New York experienced 95% and 97% reduction respectively in commuter activity respectively over the past three months.

The same thing is happening to the driver’s side. Ride-sharing companies face challenges in keeping their drivers at work.

Uber and Lyft in the Crisis

While some Uber and Lyft drivers who work on a part-time basis refuse to take any orders due to infection concerns, other full-time drivers may still stay on the frontlines to serve travelers for basic needs – or, they will face unemployment.

Ride-sharing, featured with convenient apps and affordable prices, has become a popular mode of commuting among people nowadays. With algorithms matching passengers to nearby drivers, the businesses are operated based on sufficient numbers and balance between commuters and drivers.

Uber and Lyft are two leading North America-based ride-sharing companies, both of which are headquartered in San Francisco, California.

For the past month, ride-sharing companies experienced a slight turndown in the stock market: For Lyft, share prices are down 2.00% (Nasdaq: LYFT); for Uber, down 3.63% (NYSE:UBER).

While each company declares that it puts well-being and safety of employees and customers as priority during the COVID-19 crisis, they set out somewhat differentiated business and risk management strategies.

Similarity: both companies state they enforce cleaning practices among their drivers and partially suspend their operations in some cases.

Looking at Uber

Uber says on their official website that they will temporarily suspend the accounts of riders or drivers who “confirmed to have contracted or been exposed to COVID‑19”.

Uber provides drivers with disinfectants to keep their cars clean for free, with manufacturers and distributors keeping enough cleaning supply. In particular, the surfaces being touched most often should be wiped.

In addition, Uber enforces “no contact” policy in their sub-brand – UberEats – specializing in local food delivery.

With the social distancing order from California Governor Gavin Newsom, the state’s residents are encouraged to work at home.

UberEats expects an increase in demand for food delivery given the less commuting population. To support local restaurant businesses, UberEats waived the delivery fee for more than 100,000 restaurants in North America.

For safety concerns, they allow customers to ask for leaving food at the door by leaving a note in the app. Food delivery companies like Doordash and Grubhub undertake similar policies. UberEats also provides free meals to health care workers, according to JUMP website.

Looking at Lyft

Similar to Uber, Lyft also says in their official website that they will distribute hand sanitizers and other cleaning supplies to their drivers.

Further, to comply with California state order of social distancing, Lyft paused shared riding in all metropolitan markets, including San Francisco and Los Angeles. They also enforce cleaning activities in their bikes and scooters.

Lyft has established the COVID-19 fund to help drivers who are diagnosed with the Coronavirus disease survive the individual quarantine. (Uber also builds an employee relief fund for impacted restaurant workers.)

However, it turns out that Uber and Lyft are unable to guarantee their sick leave compensation at this moment, according to CNET reporting.

What Is Happening With the Local Drivers?

CNET recently spoke with three Uber drivers and one Lyft driver — all from San Francisco — who exhibited COVID-19 or other disease symptoms and had asked for paid leave. All of them said their companies need an extended period of time to review and process requests for sick leave.

Similar situations are reported to be happening in New York, Illinois and Washington State.

According to The Washington Post, such delay in unemployment aid issuance resides in the fact that “gig” workers are categorized as independent contractors.

In contrast to full-time laborers, they are not eligible for unemployment benefits such as paid leave and health insurance under the current U.S labor system. Without guaranteed labor protection, the Coronavirus has been posing a threat to their economic survival.

While the U.S. Congress and local government officials seem to be progressing to list self-employed labors to be protected under the Coronavirus Aid, Relief, an Economic Securities (CARES) Act, the realization of unemployment benefit issuance still depends on the corporate themselves.

The Coronavirus infections are increasing at this moment, and the spread across the United States is projected to slow down no earlier than the next two months. It will certainly further affect the economy of the ride-sharing companies financially.

While struggling to maintain financial stability, the ride-sharing companies still need to spend time prioritizing drivers and customers’ interests and concerns in facing up the unprecedented challenge.

In the midst of bad news, a glimmer of good news: The Coronavirus is stressful to all of us, of course, but viewing it from an environmental perspective, the nation’s overall GHG emission would be reduced due to such a large decline in commuting all over the United States.

* * * * * * * *

About the Author
Yuyou Chen works as a Sustainability Reporting Analyst Intern at G&A Institute. She is currently a senior working towards a B.S in Environmental Science and Management and a B.A in Economics at the University of California, Davis. She is interested in ESG investing, Sustainability Reporting, and Urban Mobility. She had previous internship experience in a British environmental consulting firm where she engaged on research and analysis of an eco-labeling project for a China paper making company.