Monthly Archives: May 2016

Despite Trend Toward Pension Freezes, Fund Administrators Increasingly Confident in Sustainability

images (3)The Archdiocese of Philadelphia recently announced that it will freeze its traditional pension to keep the plan’s estimated $150 million deficit in check and shrink it over time. The Archdiocese’s current plan, known as a “defined benefit plan” because it guarantees certain benefit levels to participants, held $478 million in assets June 30, 2012, about 76 percent of the $630 million it needs to meet anticipated long-term obligations. Defined benefit plans are commonly called “traditional pension plans”.

The change will be effective June 30, 2014, after which time almost 8,500 current employees of the Archdiocese of Philadelphia-including parochial school teachers, church office workers, and other lay employees-will no longer be able to accrue benefits under the plan. Instead, a 401(k) style plan will be offered in its place.

In recent years, freezing of pensions has taken hold as a viable approach in many nonprofit and religious sectors. For example, archdioceses in Boston, Chicago and Minneapolis-St. Paul have placed freezes on their traditional pension plans for lay employees. Also, a national trend points to more employers offering retirement plans that establish a contribution rate, as opposed to plans which guarantee a pension benefit upon retirement.

The City of Detroit’s emergency manager, Kevyn Orr, proposed a pension freeze as part of a broader strategy to get the city out of bankruptcy. Orr argues changes are necessary to stabilize pension funds, which he says are underfunded by $3.5 billion, for current workers and those nearing retirement. His proposal aims to reduce Detroit’s staggering legacy costs to help resolve about $18 billion in long-term debts and liabilities overall.

Under the proposed plan, about 9,700 current city workers, including police and firefighters, would be affected. As of January 1, city workers could enroll in a 401(k) style account, and the city would contribute 5% for non-uniformed workers and 10% for police and fire. Workers also could deposit their own money into the accounts. As part of the proposal, employees who were not yet completely vested in the city’s pension plans (8 to 10 years depending on the position), would have their pension service credits erased at the end of this year. However, any money they contributed in the past from their paychecks would be repaid and placed in an annuity account.

Pension reform is not easy to tackle, as the state of Illinois has painfully found out. Underfunded by $100 billion, the state’s pension liability is causing cuts in funding for other state services and is a key reason why credit downgrades have left Illinois at the bottom of ratings among U.S. states.

On December 5th, Illinois Governor Pat Quinn signed into law an ambitious financial, legal, and political effort to reinvigorate the state’s falling credit ratings and unstable economy.

Taking effect June 1, 2014, the new law aims to save $160 billion over the next thirty years by curbing cost-of-living increases to retirees and requiring many current workers to abstain from up to five annual cost of living bumps when they become retirees. It also will boost the retirement age for current workers by up to five years.

Governor Quinn states that the law is a sign that “Illinois is moving forward.” Both union representatives and Republican Party members, however, are less optimistic about the law’s implications.

The GOP and Democrats are presently debating the constitutionality of the new law. At issue is a clause in the 1970 Illinois state constitution which states that public pensions are enforceable contracts with benefit that cannot be diminished or impaired.

In order for the law to be considered constitutional, employees would need to give 1 percentage point less to their salaries, and pension systems would be allowed to sue to force the state to pay the mandatory employer share to retirement. Also, a limited number of workers could join a 401(k) style defined contribution plan. Whether or not Governor Quinn’s new law is constitutional is up for the courts to decide.

Even though the focal point of pension reform has been on freezes, public pension plan administrators are increasingly upbeat about their funds’ outlook as well as their readiness to address future retirement concerns, a new survey by the National Conference on Public Employee Retirement Systems (NCPERS) reveals.

The 2013 NCPERS Public Retirement System Study also shows continuing financial strength for public funds, with ongoing improvement in long-term investment returns.

In conjunction with Cobalt Community Research, NCPERS surveyed 241 state and local government pension funds with more than 12.4 million active and retired members and with assets exceeding $1.4 trillion. For the first time, NCPERS included nonmembers’ responses.

Noteworthy findings from the research coalition’s survey include:

· There is a slight uptick in confidence among public pension plan administrators about their ability to address future retirement trends and issues.

· Returns on long-term investments continue to rise. Three-year investment returns were 10 percent, up from four percent in 2012; 10-year investments were seven percent, up from five percent in 2012; and 20-year investments remained steady at eight percent, versus nine percent in 2012.

· The overall average expense to administer public pension plans and to pay investment manager fees drastically decreased from the 2012 level of 73.1 basis points to 57.3 basis points (100 basis points is equal to one percentage point).

· Public pension plans are taking a number of steps to strengthen funding levels, including:

1. Lowering the actuarial assumed rate of return

2. Raising benefit age and service requirements

3. Tightening retiree return to work rules

4. Shortening amortization periods

5. Lowering the number of employees receiving health care benefits

· Overall, funds reported domestic equity exposure at 35 percent, down slightly from 36 percent in 2012. International equity exposure remained steady at 17 percent. Over the next two years, funds plan to increase allocations to international equity, domestic fixed income, private equity, and hedge fund investments, slightly reducing domestic equity.

· The average funded level of all responding public pension plans was 70.5 percent. Among NCPERS member plans, the level was 71.5 percent, less than 2012’s figure of 74.9 percent. For non-NCPERS plans, the level was 69 percent. Lowering the actuarial assumed rate of return and market volatility were the two most noteworthy reasons for the decline.

According to NCPERS Executive Director and Counsel Hank Kim, Esq., survey results run counter to what public perception of pension funds has been.

“What it tells us is that despite the hyperbole of some high-profile politicians, public pension plans are not in crisis. To the contrary – they are alive and thriving, more than adequately funded, inexpensive to operate and sustainable for the long-term,” he said in a NCPERS news announcement.

Effects of Labor Laws and Costly Credit on Garment Exports

images (1)Lately, the Indian garment sector has witnessed a boom in exports, thanks to increasing demand from all major markets including the USA and the European Union. With big orders pouring in, garments have become one of the top growing export sectors in the country. Because of its high quality garments, India has become one of the preferred sourcing destinations for several brands such as Zara, H&M, Mango, Tommy Hilfiger, etc. However, the country’s inflexible labor laws and costly credit are proving to be major roadblocks for the sector, especially when it comes to exports.

Stringent Labor Laws Affecting Investors

The stringent labor laws prevailing in the country have created great apprehension among garment manufacturers. They believe that the bigger they grow, the more difficult it is to run a business. It is to be noted that garment is one of the most labor intensive sectors in the country after agriculture. Hence, the impact is more on this segment than the others due to strict labor laws. More than 8 million workers are employed by the sector, out of which 70% are women. Often companies are closed without prior approval from authorities, which deprive workers of their statutory dues.

Take for example the Factories Act of 1948. This act restricts even a willing worker to work beyond 48 hours in a week. This not only reduces production capacity, but also his earnings. India’s loss is its competitors’ gain. Though labor costs are higher in China, yet its flexible labor rules, lower credit costs, subsidized power and better infrastructure has propelled its garment sector and exports. The Bangladesh government’s bilateral treaties with European nations and other countries of the world have enabled buyers to import garments from the country without any import duty.

High Credit Costs Hurting India

Higher credit costs are also hurting garment exports from India. While credit cost in India hovers around 11 to 12%, the same is around 3 to 5% in rival nations. Shortage of electricity in states like Tamil Nadu and Andhra Pradesh, where many garment exporting companies are located are also hurting these companies. In these states, high labor costs have reduced manufacturing competitiveness to a large extent.

The Way Forward & Challenges

However, recently garment exports have started to pick up, aided by several external factors. According to data from the Apparel Export Promotion Council, India’s garment exports to the EU has increased by 5.9% on year-on-year basis during January-May 2013, while those of Bangladesh and China have declined by 1.8% and 9.7% respectively during the same period. Yuan’s rise against the dollar and labor unrest in Bangladesh has worked in India’s favor. Importers now desire to buy from India, rather than Bangladesh because of safety related issues and the overall stability that India provides.

The Government of India has taken initiatives to attract investment in the sector. However, India must work out a way to make its labor rules more flexible to provide a competitive edge to the sector.

State Pension Reform Stymied by Court Opposition

download (13)Although many states have chosen to take divergent paths, courts have stopped several of them from restructuring, forcing administrations to work within the confines of their employee retirement plans. As a result, public employers are not afforded the flexibility to adjust the rate at which a worker may accumulate benefits, even in regards to work that an employee will do in the future. This constraint inhibits pension reform and the ability to manage the high cost of underfunded, and frequently, unrestrained, public employee pensions.

Contract ISSUES

Why do courts have the authority to block the public sector from making changes to their pension plans?

In an October 16th Bloomberg article, Steven Malanga, Senior Editor of ‘City Journal’ and a Senior Fellow at the Manhattan Institute think tank, wrote, “Many legal protections given to public-sector pensions arise from court decisions that treat laws governing public retirement systems as a contract between the state and a worker.”

“That puts pensions under the jurisdiction of the contract clause of the U.S. Constitution, or under state contract law,” according to Malanga.

For decades, California courts, including the California Supreme Court, have been sticklers on upholding contract law to preserve pensions. Not only does the worker’s contract commence on the first day of employment, according to Amy Monahan, a professor at the University of Minnesota Law School and author of a 2012 Iowa Law Review article about California’s stance, but it safeguards both past and future pension accruals.

Even though federal court decisions have held that prospective changes to contracts are not unconstitutional, Monahan points out that 12 other state Supreme Courts, have, in essence, created a bloc that embraces California’s rule on pension law. These states include: Alaska, Colorado, Idaho, Kansas, Massachusetts, Nebraska, Nevada, Oklahoma, Oregon, Pennsylvania, Vermont and Washington.

In addition, California courts have stretched the rule to include other benefits such as health care. In 2011, the California Supreme Court applied the precedent to retiree health-care benefits, ruling they-like pensions-are a vested contractual right that cannot be changed. In September, a Los Angeles judge decided that the city could not freeze its retiree health-care benefits.

Other States’ Efforts

There has been a concerted effort to amend state constitutions so that governments can modify public employee retirement plans.

Not surprisingly, a leading proponent of pension reform comes from California. Chuck Reed, the mayor of San Jose, has launched a proposed ballot initiative to specifically address and abolish the Supreme Court precedent to enable pension reform. Annual payments by San Jose to fund government pensions have jumped from $73 million in 2002 to $245 million in 2012.

New Jersey voters are starting with small steps. They approved a minor change to their constitution related to the pension reform of judges. In 2011, judges disputed state legislation requiring them to contribute more to their retirement. When a state judge blocked the proposal in court, the legislature put an amendment on the ballot to change its constitution, and 83 percent of voters approved it.

The state with the unfortunate title of “worst state pension crisis in the U.S.” by Moody’s Investor Service is Illinois, where public-union leaders argue that the Illinois constitution denotes that the state cannot make changes to its pension system for current workers. Prominent Chicago law firm Sidley Austin LLP challenged that line of reasoning in a brief, saying the clause only protects benefits that have already been earned. Advocates of pension reform have advised the Illinois legislature to at least enact changes and see if the state Supreme Court rules that they meet required standards. If the court does not, amending the state constitution may finally gain some strength this time as Illinois is spending $6 billion from its $31 billion general fund on pensions, mushrooming from $1.8 billion in 2008.

Even Colorado, a supporter of the California approach, is looking at alternatives. After the state legislature reduced annual cost-of-living increases for pensions in 2010, retirees sued to stop the changes. In 2011, a district court ruled in favor of the reduction, but a superior court reversed that ruling. Colorado’s Supreme Court is now considering the case.

If Reed succeeds with his California voter initiative plan, other states may follow suit. In the meantime, difficult struggles lie ahead in The Golden State and elsewhere. However, without the ability to adjust retirement benefits yet to be earned, state taxpayers can look forward to burgeoning pension costs in the years ahead while public employees and retirees likely will see their benefits reduced through bankruptcy.


Do Hospitals in Your Community Practice Racial Discrimination? It’s Not A Farfetched Question

images (4)one of the most progressive counties in the State of Florida, it is an “open secret” that racial and religious discrimination is practiced in many if not most area hospitals. Seems hard to believe, but when black or other minority hospital personnel report discrimination to management, they discover that a quiet, unpublicized policy allowing racial and religious discrimination exists. The policy can be found in what officials call a “hospital-wide directive.”

“How could this be,” you might wonder? Imagine a sign on a bassinet in the delivery room that reads: “No African American nurses to care for baby, per dad’s request.”

Paradoxically, this discrimination is justified as part of “patient rights.”

A front-page story about hospital discrimination designed to protect patient rights quoted administrators who defended the policy as necessary “to properly care for patients.” A black nurse, removed from a patient’s care, asked, “what about my rights?” The answer is her rights were subordinated by the administration of the hospital in order to go along with bigots who demanded that no black people participate in their care or treatment.

I found this amazing. In Mississippi or Alabama, I could believe it. Maybe Georgia, South Carolina or Texas-sure, this could happen. But Florida? Pinellas County? Quelle horror!

It brings to mind a comment by the late Christopher Hitchens in Hitch-22: A Memoir: “The one thing that the racist can never manage is anything like discrimination: he is indiscriminate by definition.”

How is it that some hospitals in Florida have unwritten policies that protect the rights of bigots to engage in racial discrimination or for reasons associated with religious beliefs? I’m not making this up- you can read the story of such “rights” in an article by Weston Phippen. The piece is entitled, “Hospitals Balance a Patient’s Request with a Fair Workplace” in the Tampa Bay Times of November 10, 2013.

One black nurse unwilling to subordinate her rights to those of a bigoted white patient filed a lawsuit alleging discrimination in the District Court in Tampa. Ms. Syrenthia Dysart claimed that at Palms of Pasadena Hospital of St. Petersburg, an “open secret” directive violated her right to a discrimination-free workplace. The case is pending. In Michigan, a similar case was settled out of court-after the hospital officials apologized, pledged to end the practice and paid the nurse $200,000.

While patients do have rights, such as to refuse medical care, to informed consent and to refuse care for whatever reason, the hospital and the staff who work there have rights, as well. A law professor cited in the Times story said that if a patient puts an undue burden on the hospital, the facility can advise a patient that it is unable to accommodate a discriminatory request. It can then arrange for the patient’s transfer to another facility, if the patient is able to be moved.

In a nationwide survey of 127 doctors by the University of Chicago, 20 percent reported having encountered “race – or religion – related demands from patients. Some studies found that accommodating racial prejudices can be beneficial to bigoted patients. A 2003 study cited in the Times account “showed that when a patient and physician are of the same race, on average the visits were more than two minutes longer and the patient was more satisfied with the care.”

I say “too bad”-better to have shorter visits and less patient satisfaction than to accommodate racial, religious or other prejudices. Perhaps better patient outcomes would also accompany increased tolerance if bigoted patients were given lessons in the rights of all people. Perhaps hospital Bill of Rights given to all patients upon entry should incorporate this observation by Jarod Kintz: “I accept all people-even the people I find unacceptable.” Let all patients know that they will be expected to do the same.

How to Win Worker’s Compensation Cases

download (12)So you’ve been hurt, maybe terribly, maybe not so much. But your injury will hamper your efforts from going back to work and eventually a pay cut. Worker’s compensation should be able to take care of that. However, what will you do if your employer does not have a provision for worker’s compensation? Do you just wallow in the corner and take a leave instead? In these situations, you at least have to fight for your right. But just how are you going to do that? The answer of course is to file a worker’s compensation case. The problem now is how to win the case, and how to get what you are owed. With this enters these steps to help you get through.

While the idea of workers’ compensation is clear-cut, winning a workers’ compensation case is not always a walk in the park. Even with a case that has evidence in favor of the employee, there is frequently a chance that the employee will not gain access to the benefits of workers’ compensation. In order to know how to win or mainly to get the idea what to do in a workers’ compensation case, there are a few things to be familiar with and take action on:

1. Immediate treatment is the best!

As much as possible, get medical treatment immediately if you are injured or sick from an incident which happened while you are at work. By doing so, it becomes the best interest of your health as well as your workers’ compensation claim. Your doctor will give his prognosis and be sure to follow any advice given to you by the doctor or hospital you had treatment in. Proper medical treatment should be your top priority at all times. This will not only give you a strong evidence for your case, it is also basically beneficial for you as well.

2. Know yourself.

Prior to filing the case, do a self-assessment first. This will help you identify whether or not you have a viable case once you are feeling rational again. If you are injured or sick due to a work-related incident, your case is probably valid. If you feel like your injury is not because of your work, then opt to skip the case instead and try to negotiate with your employer outside the court. This will not only save you time and effort, it will also save your working relationship.

3. It’s okay to ask for help.

While the budget may be a problem for most employees, it would be good to at least seek council with a workers’ compensation attorney. This is because your case will be subject to statutes of limitations under the workers’ compensation program that is regulated by your city.

4. Hire an experienced attorney.

An experienced lawyer will definitely help you through. If the problem lies in your budget then you can seek for local lawyers who are specialized in worker’s welfare. They are more likely to be the ones most knowledgeable about worker’s compensation cases.

5. Cooperation will get you through.

Your lawyer will be asking you a lot of questions, and medical documents. Cooperate as much as you can so that you will have an easier working relationship with him. Remember, he will be the one helping you throughout the entire case.


Health and Safety Management

download (11)Throughout October several changes in health and safety legislation took place. How to be safe and how to manage the safety of workers? RIDDOR(Reporting of Injuries, Diseases and Dangerous Occurrences Regulations), First Aid Regulations, Young people at work regulations, are just few of the recent changes among the many bits and bobs of that the authorities were trying to adjust or remove. Ever since the Lofsted Review the Government has been aiming to make it easier for all of us…

Less safety requirements do not necessarily simplify things, at least not for everyone. Overall, there are lots of positive changes; however some of them are not as clear and simple as they were intended to be. Depending on the kind of service provided and the size of your business, those new changes would may impact you in some way. The truth about this new approach the authorities are promoting is that everything is simplified and easier, but the penalties and fines are even higher for those who make mistakes. Everything is an attempt to be direct and straightforward for you to comply, however if you do not have a full and clear understanding then professional advice and guidance should be sought after.

So whatever duty holders do or do not do, every health and safety failure translates into more expense. The change of attitude towards health and safety is the essential change that hopefully will be seen in the next couple of years. More than anything, the idea is to start perceiving health and safety as an integral part of good management generally. Rather than seeing it as a separate system of rules, “unnecessary” and “expensive”, which is quite the generalized opinion among many companies?

A revised version of the Guidance for Successful health and safety management (HSG65) is due to be published in the next few months; the refreshed guidance will be available on line on the HSE’s website. In general it represents the above mentioned change of attitude towards health and safety. The simplified recommendation on how to keep workers safe is moving from using the POPMAR (Policy, Organising, Planning,, Measuring performance, Auditing and Review) to the much more clearer slogan “Plan, Do, Check, Act”.

This is a quite useful way of thinking and organizing your office, factory or building site… Maybe some people would be able to apply it in their personal lives too? It represents a breaking point of the perception of the “dreaded” health and safety compliance. Over the years, different experiences and talks with colleagues have taught us that business owners and managers whom are effectively using health and safety as a managerial tool are the most successful ones. It can be tricky to start off, but once you have a well organized business, the ball starts to roll and the benefits are not late to arrive.

Plan, where you want to be, identify any problems and make a clear list of simple steps and people who will be responsible for corrective measures. Make sure the basic legal documents that safety compliance requires (health and safety policy, risk assessments etc) are well written and well understood from everybody who is affected by them. Once you have a workforce conscious of the fact that they should work in the safest possible way, everything tends to get easier. This is the stage when you should decide how to monitor performance – based on active indicators such as health surveillance, routine inspections as well as reactive methods, for example monitoring sickness absences and investigating accidents and incidents.

Do, everything is now risk assessment based, it is all about conducting the necessary assessments and manage them, always start with the biggest risks/hazards. Everyone from the top to the bottom of the organization should be clear on what they should do. Invest in things like training, competent professional advice, introduction of new equipment and ensure you have the correct and trusted supervision.

Check, when having to monitor health and safety and/or how well your production line is organized, there is nothing better than implementing in house spot checks and audits. Do not rely only on what the documentation is saying, go and see it for yourself and talk to your workers and line managers.

Act, learn from the mistakes and compare your results with those of other companies, even competitors. Take into account the information from accidents and incidents, sick absences and near misses will tell you where failures are.