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A 401(k) plan is a retirement savings plan offered by many American employers. An employee who signs up for a 401(k) agrees to have a percentage of each paycheck, on a pre-tax basis, deducted and invested directly into a managed retirement account, and their employer may match part or all of that contribution up to a certain percentage. The employee gets to choose among a number of investment options, usually mutual funds, and they have tax advantages to the saver.

401(k) plans are regulated by a variety of federal and state regulations that affect everything from the way they are administered to the way they are advertised. These plans are named after a section of the U.S. Internal Revenue Code. However, the rights of consumers with regard to 401(k) plans is more heavily dependent on two key pieces of legislation – the Employee Retirement Income Security Act (ERISA) and the Setting Every Community Up for Retirement Enhancement Act (SECURE). 

In this guide, we’ll briefly look at each piece of legislation, and how it affects 401(k) accounts.

Key Takeaways

  • There are a vast range of laws and regulations that apply to 401(k) accounts. These accounts are named after a section of the U.S. Internal Revenue Code, and were first used in 1980.
  • ERISA was passed in 1974, and provides rights to consumers whose assets are invested in retirement accounts, including 401(k) accounts. 
  • SECURE, passed in 2019, aimed to make 401(k) accounts more flexible, and to encourage both employers and employees to sign up for them.

The Early Days

401(k) plans date back to 1978: the year that Congress passed the Revenue Act of 1978. This act including a provision — named after the Internal Revenue Code Section 401(k) — that gave employees a tax-free way to defer compensation from bonuses or stock options. The law went into effect on January 1, 1980. It wasn’t until the following year, however, that the IRS issued rules that allowed employees to contribute to their 401(k) plans through salary deductions. This provision jump-started the widespread roll-out of 401(k) plans in the early 1980s, and has been largely responsible for their widespread adoption today.

It’s worth noting that the 401(k) was never really designed to be a catch-all solution for retirement. At the time that the 401(k) was first formulated, many employees were offered defined-benefit retirement plans which many analysts argue are better for employees and employers alike. According to a 2021 report by the Congressional Report Service, only 15% of private sector employees have access to a pension plan compared to 68% of state and local public sector employees have the same access. In the same year, the Pension Rights Center reported that 31% of older Americans have a pension.

The Employee Retirement Income Security Act (ERISA)

Another unusual aspect of 401(k) plans is that many of their major provisions are regulated by a law that came into effect before the 401(k) provision existed – the ERISA Act of 1974. 

ERISA is a federal law that protects the retirement assets of American workers. The law implemented rules that qualified plans must follow to ensure that plan fiduciaries do not misuse plan assets. At the time the act was passed, the majority of retirement accounts were defined-benefit accounts and not 401(k) accounts; however, the act now covers a huge variety of retirement vehicles, including 401(k) plans.

ERISA states that the administrators of 401(k) plans must regularly inform participants about their features and funding. It also sets minimum standards for participation, vesting, benefit accrual, and funding, and defines how long a person may be required to work before they’re eligible to participate in a plan, accumulate benefits, and have a non-forfeitable right to those benefits. It also grants retirement plan participants the right to sue for benefits and breaches of fiduciary duty. ERISA is enforced by the Employee Benefits Security Administration (EBSA), a unit of the Department of Labor (DOL).

401(k) accounts are named after after a section of the U.S. Internal Revenue Code, and were first used in 1980. Today, they are regulated by many pieces of legislation, including ERISA and SECURE.

The SECURE Act

The next major update to the way that 401(k) plans worked came in the Setting Every Community Up for Retirement Enhancement Act of 2019, better known as the SECURE Act. 

This act contained many provisions that have subtly altered the way in which 401(k) plans work, many of which had been under discussion for years. John Lowell, an Atlanta-based actuary and advisor with October Three Consulting, told SHRM in 2020 that “to a large extent, the SECURE Act is a hodgepodge of a lot of little retirement policy initiatives,” but which greatly alter how employers provide retirement savings plans.

The act came in response to a perceived crisis in the US retirement system. According to data from the U.S. Bureau of Labor Statistics published in March 2021, only 55% of the civilian adult population participates in a workplace retirement plan.

In response, the SECURE act aimed to make it easier for small employers to set up 401(k)s by increasing the cap under which they can automatically enroll workers in “safe harbor” retirement plans from 10% of wages to 15%. It also:

  • Provides a maximum tax credit of $500 per year to employers who create a 401(k) or SIMPLE IRA plan with automatic enrollment. 
  • Enables businesses to sign up part-time employees who work either 1,000 hours throughout the year or have three consecutive years with 500 hours of service. 
  • Encourages plan sponsors to include annuities as an option in workplace plans by reducing their liability if the insurer cannot meet its financial obligations. 
  • Pushes back the age at which retirement plan participants need to take required minimum distributions (RMDs) from 70½ to 72. 
  • Allows the use of tax-advantaged 529 accounts for qualified student loan repayments (up to $10,000 annually). 
  • Permits penalty-free withdrawals of $5,000 from 401(k) accounts to defray the costs of having or adopting a child. 
  • Encourages employers to include more annuities in 401(k) plans by removing their fear of legal liability if the annuity provider fails to provide, and also not requiring them to choose the lowest-cost plan. (This could be something of a double-edged sword. Employees will need to look extra-carefully at these options.)

Overall, this was the most extensive overhaul of the 401(k) provisions since their inception in 1980, and have further increased Americans’ reliance on 401(k) accounts as a primary retirement vehicle.

When Were 401(k) Accounts First Used?

401(k) accounts are named after a section of the U.S. Internal Revenue Code, and were first used in 1980. Today, they are regulated by many pieces of legislation, including ERISA and SECURE.

How Did SECURE Alter 401(k) Accounts?

The SECURE act aimed to encourage small employers to set up 401(k) accounts for their employees. It did this by providing tax credits, and making the 401(k) provisions more flexible for both employees and employers.

Who Regulates 401(k) Accounts?

Different aspects of 401(k) accounts are regulated by different federal agencies. Some of the most important consumer rights are contained in ERISA, however, which is enforced by the Employee Benefits Security Administration (EBSA), a unit of the Department of Labor (DOL).

The Bottom Line

There is a significant range of laws and regulations that apply to 401(k) accounts. These accounts are named after a section of the U.S. Internal Revenue Code, and were first offered in 1980. ERISA was passed in 1974, and provides rights to consumers whose assets are invested in retirement accounts, including 401(k) accounts. SECURE, passed in 2019, aimed to make 401(k) accounts more flexible, and to encourage both employers and employees to sign up for them. While the 401(k) account was never intended to replace defined benefit plans, most employers have phased out pensions and shifted the burden of retirement savings onto employees.

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