“Shouldn’t We Care?”

A MarketWatch op-ed writer is worried about grown, adult American citizens having more retirement funds in our IRAs than in our 401(k)s.

The shift from 401(k)s to IRAs moves employees’ money to a different regulatory environment. The Employee Retirement Income Security Act of 1974, which covers 401(k) plans, requires plan sponsors to operate as fiduciaries who always act in the best interest of plan participants.
In contrast, the standards of conduct for broker-dealers selling IRA investments are much less protective than the ERISA fiduciary duties of loyalty and prudence, which have consistently been characterized by the courts as “the highest known to the law.”
In addition, in the 401(k) environment, much greater emphasis is placed on the disclosure of fees in an understandable format than is the case for IRAs. And most important, 401(k)s place much more emphasis than IRAs on keeping the funds in the plan until retirement.

Those are, no doubt, useful items and anyone investing for his own retirement should care about them. The problem arises, though, when the system—here employer 401(k)s—uses these to interfere with an employee-investor’s decisions regarding what is supposed to be his own money.

As the opinion writer notes in her piece, withdrawals from either program that are made prematurely or outside of a very few exceptions (there are fewer in 401(k)s than in IRAs), are subject to a 10% tax penalty in addition to Federal and State income tax assessments. Those guardrails and limits are well-known to us Americans, and they’re all we need to make our own decisions regarding our money. If our decisions are ill-informed, that’s on us, or should be.

The opinion-writer closed her piece closed with this:

Shouldn’t we care that only 45% of assets in the private sector are protected by ERISA? And what should we do about it?

No, we should not care. We do not need Big Brother constantly looking over our shoulders, constantly using that perch to interfere with our decisions.

Americans are too dumb to manage our own fiscal affairs? One way to try to push that on us is to keep interfering with our decisions instead of letting us make our own mistakes and—critically importantly—learn from them.

That leads into what we should do about it. TL;DR: nothing. Complete answer: nothing at all. Stay out of our way.

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