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2. Defined benefit plans should be exempt from the requirements of Revenue Procedures 75-49 and 76-1, relating to 4-40 vesting. Defined benefit plans should qualify under the Code with the selection of any of the three statutory vesting schedules contained in ERISA and without being subjected to the "key employee test" or the "turnover test." The most objectionable element of these Revenue Procedures is the apparent requirement that total years of service with the employer be counted for purposes of "4-40" vesting, rather than merely the employee's length of service following adoption of the plan. In any event, except as provided in paragraph 3 below, the service requirement should be limited to the number of years since the plan has been in effect, as is the case with ERISA's minimum vesting standards. The requirement to count years of preplan service may cause a defined benefit plan to have significant unfunded vested benefit liability on its effective date.

3. Except where there is full and immediate vesting, ERISA requires that an employee who works 1,000 or more hours per year and has completed one year of employment or attained age twenty-five (25), whichever occurs later, be included as a participant in defined benefit plans. This requirement would appear meaningless if the plan provides a benefit that does not relate to service. The requirement that an employee be covered after one year of service substantially increases the recordkeeping cost of the plan without providing a meaningful benefit to the plan participant. Consideration should be given to allowing defined benefit plans the option of excluding those employees with less than three years of service. Where benefits are accrued only upon participation in the plan, the three-year eligibility requirement would be dependent upon the plan also providing accrual of benefits and vesting based upon the date of original employment.

4. A defined benefit plan which provides a meaningful retirement benefit for a group of employees whose average age is about age 40, usually requires a contribution of 8 percent to 12 percent of the annual compensation of the covered employees in order to be funded on a sound actuarial basis. The initial impact on profits of a contribution of this magnitude, coupled with the other burdens associated with the adoption of a defined benefit plan which have been previously mentioned, often result in the employer

adopting a defined contribution plan instead or a
the employer may simply decide not to adopt a plan.
An extremely important and meaningful incentive
for employers to adopt defined benefit plans (which
are the backbone of the private pension system)
would be established by providing a tax deduction
for employee contributions to defined benefit plans
up to a maximum of 5 percent of covered compensation
not to exceed $1,500 per year.

IV. CONCLUSION

In conclusion, the American Society of Pension Actuaries, representing 1500 professional pension plan practitioners, is grateful for this opportunity to share in the public's re-evaluation of pension planning and the Congress's reassessment of ERISA. Problem areas have been defined and recommendations have been offered consistent with the goals of ERISA in order to strengthen and encourage the development of the private pension system. Remedial legislation is absolutely imperative. Our actuaries and pension plan consultants who design, evaluate and administer 25% of our nation's qualified retirement plans can not overstate the very real threat to the continued existence of small employee benefit plans. We are grateful for your careful consideration.

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THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA
1957 E Street, NW⚫ Washington, DC. 20006 • (202) 393-2040
LAURENCE F ROONEY, President PAUL N HOWARD, JR, Senior Vice President IVAL R CIANCHETTE, Vice President
JOSEPH A SETA, Treasurer JAMES M SPROUSE, Executive Vice President

May 18, 1978

The Honorable John H. Dent

Chairman

Subcommittee on Labor Standards
Committee on Education & Labor
U.S. House of Representatives
Washington, D.C. 20515

Dear Mr. Dent:

Thank you for extending us the opportunity to submit our recommendations and views on legislative changes to the Employee Retirement Income Security Act of 1974.

As you will note from our enclosed statement, our major concern is contingent employer liability. We find it most inequitable to impose liability on a single employer in a multi-employer benefit plan if that employer has made every agreed to contribution to the plan. I hope you will give serious consideration to this formidable problem.

Once again, thank you for your courtesy and consideration.

Sincerely,

R.7. Zacharias

Robert F. Zacharias
Assistant Director

Collective Bargaining Services

RFZ:99

Enclosure

STATEMENT OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA

The Associated General Contractors of America is a management trade association representing 8,300 general contracting firms and 20,000 affiliate firms. Our member firms annually perform 80 billion dollars of construction which involves over three and one-half million

employees.

Many of our members are involved in multi-employer pension and employee benefits plans in all parts of the country. We have very strong feelings on the application of Title IV of ERISA.

General contractor employers are in a position which, we suspect, was overlooked when the ERISA legislation was passed, i.e., unlike most employers we are regularly contributors to multiple plans. Most employers are involved with one benefit plan, but general contractors are by definition usually involved in none (where they work full open shop) or in several (where they work union).

This gives rise to liabilities which were probably unintended and which, by exceeding 100 percent of corporate worth, are patently impossible to satisfy.

It is the position of the AGC that employer liability under pension plans created pursuant to the collective bargaining process should be limited to the retirement contributions called for from such employers under the terms of the collective bargaining agreements involved. The creation of liability in excess of such amounts is inequitable, counter-productive, technically unworkable and contrary to the principles of collective bargaining which have worked so well in past years.

We object strenuously to the imposition by ERISA of various

levels of liability upon employers that are not otherwise delinquent in the making of agreed contributions to the retirement plans covering their unionized employees. This liability is threefold:

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The liability to make up funding deficiencies (not
caused by delinquent contributions called for under
collective bargaining agreements) as same may appear
upon the funding standard account prepared at the
conclusion of the period covered by each collective
bargaining agreement;

The imposition of penalties upon such underfunding
(again, only to the extent that such underfunding
is not attributable to delinquent contributions);
and

3.

The resort by the Pension Benefit Guaranty Corpor-
ation (PBGC) to up to 30 percent of the net worth
of the employer for each plan to which contributions
are made that terminates with inadequate funds to
meet vested accrued liability. Since most employers
in the construction industry make contributions to
more than one plan covering unionized employees,
the residual liability to the PBGC could, if the
law is so construed, exceed 100 percent of net
worth.

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