Pension Benefit Guaranty Corporation
The Pension Benefit Guaranty Corporation (PBGC) is a United States federally chartered corporation created by the Employee Retirement Income Security Act of 1974 (ERISA) to encourage the continuation and maintenance of voluntary private defined benefit pension plans, provide timely and uninterrupted payment of pension benefits, and keep pension insurance premiums at the lowest level necessary to carry out its operations. Subject to other statutory limitations, PBGC's single-employer insurance program pays pension benefits up to the maximum guaranteed benefit set by law to participants who retire at 65 ($67,295 a year as of 2018). The benefits payable to insured retirees who start their benefits at ages other than 65 or elect survivor coverage are adjusted to be equivalent in value. The maximum monthly guarantee for the multiemployer program is far lower and more complicated ($12,870 a year as of 2017 for a participant with 30 years of credited service).
|Formed||September 2, 1974|
|Headquarters||1200 K Street, NW|
|Annual budget||$423 million (FY 2016)|
In fiscal year 2018 PBGC added 58 more failed single-employer plans, bringing its inventory to 4,919 plans, and paid $5.8 billion in benefits to 861,000 retirees in those plans. That year, PBGC also paid $151 million in financial assistance to 81 multiemployer pension plans on behalf of 62,300 retirees. The agency has a total of $164 billion in obligations and $112 billion in assets for an overall deficit of $51 billion, an improvement of $25 billion since the prior year. The multiemployer program has a deficit of $53.9 billion and the single employer program a surplus of $2.4 billion.
Revenues and expenditures
PBGC is not funded by general tax revenues. Its funds come from four sources:
- Insurance premiums paid by sponsors of defined benefit pension plans;
- Assets held by the pension plans it takes over;
- Recoveries of unfunded pension liabilities from plan sponsors' bankruptcy estates; and
- Investment income.
PBGC pays monthly retirement benefits to more than 800,000 retirees in nearly 5,000 terminated single-employer defined benefit pension plans. Including those who have not yet retired and participants in multiemployer plans receiving financial assistance, PBGC is responsible for the current and future pensions of about 1.5 million people and insures the pensions of more than 35 million participants in ongoing plans.
Pension insurance programs
The single-employer program protects 30 million workers and retirees in 22,000 pension plans. The multiemployer program protects 10 million workers and retirees in 1,400 pension plans. Multiemployer plans are set up by collectively bargained agreements involving more than one unrelated employer, generally in one industry.
An employer can voluntarily ask to close its single-employer pension plan in either a standard or distress termination. In a standard termination, the plan must have enough money to pay all accrued benefits, whether vested or not, before the plan can end. After workers receive promised benefits, in the form of a lump sum payment or an insurance company annuity, PBGC's guarantee ends. More than 140,000 plans have gone through PBGC's standard termination process between 1975 and 2016. In a distress termination, where the plan does not have enough money to pay all benefits, the employer must prove severe financial distress – for instance the likelihood that continuing the plan would force the company to shut down. PBGC will pay guaranteed benefits, usually covering a large part of total earned benefits, and make strong efforts to recover funds from the employer.
In addition, PBGC may seek to terminate a single-employer plan without the employer's consent to protect the interests of workers, the plan or PBGC's insurance fund. PBGC must act to terminate a plan that cannot pay current benefits.
For multiemployer pension plans that are unable to pay guaranteed benefits when due, PBGC will provide financial assistance to the plan, usually a loan, so that retirees continue receiving their benefits.
Terminations are covered under Title IV of ERISA.
Missing Participants Program
When a plan sponsor chooses to terminate their pension plan through the standard termination process, arrangements must be made to distribute benefits to each participant. When participants cannot be located or otherwise are not responsive, the termination process is delayed. Since 1996 sponsors of terminating insured single-employer defined benefit (DB) plans have the option to transfer the benefits for their "missing participants" to the PBGC or to purchase annuities from insurance companies and notify PBGC of the details. In 2018 PBGC expanded the Missing Participants Program (MPP) making it available to terminating defined contribution (DC) plans, multiemployer defined benefit plans and certain single-employer DB plans not covered by Title IV of ERISA.
Pension plans that are qualified under the U.S. tax code pay yearly insurance premiums to the PBGC based on the number of participants in the plan and the funded status of the plan.
- $64 per participant for plan years starting in 2016
- $69 per participant for plan years starting in 2017
- $74 per participant for plan years starting in 2018
- $80 per participant for plan years starting in 2019
The variable-rate premium, which is $30 per $1,000 of unfunded vested benefits for 2016, will continue to be indexed for inflation, but will increase by an additional $3 for 2017, $4 for 2018, and $4 for 2019.
Maximum guaranteed benefit
The maximum pension benefit guaranteed by PBGC is set by law and adjusted yearly. For plans that end in 2019, workers who retire at age 65 can receive up to $5,607.95 per month (or $67,295 per year) under PBGC's insurance program for single-employer plans.
Benefit payments starting at ages other than 65 are adjusted actuarially, which means the maximum guaranteed benefit is lower for those who retire early or when there is a benefit for a survivor, and higher for those who retire after age 65. Additionally, the PBGC will not fully guarantee benefit improvements that were adopted within the five-year period prior to a plan's termination or benefits that are not payable over a retiree's lifetime.
Other limitations also apply to supplemental benefits in excess of normal retirement benefits, benefit increases within the last five years before a plan's termination, and benefits earned after a plan sponsor's bankruptcy.
For the multiemployer plans, the amount guaranteed is based on years of service. For plans that terminate after December 21, 2000, the PBGC insures 100 percent of the first $11 monthly payment per year of service and 75 percent of the next $33 monthly payment per year of service. For example, if a participant works 20 years in a plan that promises $19 per month per year of service, the PBGC guarantee would be $340 per month, rather than $380.
A second example, which exceeds the $44 monthly payment per year of service: If a participant works 20 years in a plan that promises $100 per month per year of service, the PBGC guarantee would be $715 per month, rather than $2000.
Multiemployer plans that terminated after 1980 but before December 21, 2000, had a maximum guarantee limit of 100 percent of the first $5 of the monthly benefit accrual rate and 75 percent of the next $15.
Under the Pension Protection Act of 2006, the Director of the PBGC is appointed by the President and confirmed by the Senate. Under prior law, PBGC's Board Chairman appointed an "Executive Director" who was not subject to confirmation.
In May 2018, President Trump nominated Gordon Hartogensis to be PBGC's next director. The Senate Finance Committee approved the nomination in November, but it expired with the end of the Senate's term in December 2018. Trump re-nominated Hartogensis in January 2019 and the Senate confirmed him in April 2019.
Pensions and bankruptcy
Several large legacy airlines have filed for bankruptcy reorganization in an attempt to renegotiate terms of pension liabilities. These debtors have asked the bankruptcy court to approve the termination of their old defined benefit plans insured by the PBGC. Although the PBGC resisted these requests, ultimately it assumed the plans.
The PBGC would like minimum required contributions to insured defined benefit pension plans be considered "administrative expenses" in bankruptcy, thereby obtaining priority treatment ahead of the unsecured creditors. The PBGC has generally lost on this argument, sometimes resulting in a benefit to general unsecured creditors.
In National Labor Relations Bd. v. Bildisco, 465 U.S. 513 (1984), the U.S. Supreme Court ruled that Bankruptcy Code section 365(a) "includes within it collective-bargaining agreements subject to the National Labor Relations Act, and that the Bankruptcy Court may approve rejection of such contracts by the debtor-in-possession upon an appropriate showing." The ruling came in spite of arguments that the employer should not use bankruptcy to breach contractual promises to make pension payments resulting from collective bargaining.
General bankruptcy principles hold that executory contracts are avoidable in practice, because neither party has fulfilled its part of the bargain and thus breach by either party only gives rise to expectation damages. Damages awards after commencement of a bankruptcy filing results in claims that take after more senior creditors. They are relegated to the status of general creditors because while breach would occur after filing of the bankruptcy petition, the contract was entered into before the filing. If a creditor is a general unsecured creditor and there is not enough money, they usually are not paid; so as a matter of practical economics, if the downturn in a company's fortunes which resulted in bankruptcy makes the performance of an executory contract less valuable than its breach, the rational company would breach. There would be no negative monetary consequences of such breach because there would be no money left for the other contract party to take because in practice general unsecured creditors are left with nothing.
In Bildisco, the Court also ruled that under the Bankruptcy Code as written at that time, an employer in Chapter 11 bankruptcy "does not commit an unfair labor practice when, after the filing of a bankruptcy petition but before court-approved rejection of the collective-bargaining agreement, it unilaterally modifies or terminates one or more provisions of the agreement." After the Bildisco decision, Congress amended the Bankruptcy Code by adding a subsection (f) to section 1113 (effective for cases that commenced on or after July 10, 1984):
(f) No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section.
According to commentator Nicholas Brannick, "Despite the appearance of protection for the PBGC's interest in the event of termination, the Bankruptcy Code frequently strips the PBGC of the protection provided under ERISA. Under ERISA, termination liability may arise on the date of termination, but the lien that protects the PBGC's interest in that liability must be perfected [to be protected in bankruptcy]." The retention of title as a security interest, the creation of lien, or any other direct or indirect mode of disposing of or parting with property or an interest in property is a "transfer" for purposes of the U.S. Bankruptcy Code (see 11 U.S.C. § 101(54)). Some transfers may be avoidable by the bankruptcy trustee under various Code provisions. Further, under ordinary principles of bankruptcy law, a lien or other security interest that is unperfected (i.e., a lien that is not valid against parties other than the debtor) at the time of case commencement is generally unenforceable against a bankruptcy trustee. Once the bankruptcy case has commenced, the law generally stays any act to attempt to perfect a lien that was not perfected prior to case commencement (see 11 U.S.C. § 362(a)(4)). Thus, the PBGC with a lien that has not yet been perfected at the time of case commencement may find itself in the same position as the general unsecured creditors.
Annual Pension Insurance Data Book
The single-employer section gives all data and statics on single-employer programs.
- Section S-3 through S-19 are the claims tables. These tables show all of the claims brought by single-employer DB plans to PBGC.
- Section S-20 through S-29 are the payment table. These tables show how much PBGC is paying out every year in insurance protection.
- Section S-30 through S-38 are the insured tables. These tables show how many participants are insured under the PBGC.
- Section S-40 through S-43 are the premium tables. These tables show how much premiums insured pension plans are paying.
- Section S-44 though S-52 show the underfunded Plans, overfunded Plans, and the funding ratios by NAIC business code, state, and participant count.
The multiemployer section, the M section, follows a similar organization.
Pension Protection Act of 2006
- The method for calculating the "variable-rate" PBGC premium is changed.
- If PBGC takes over a terminated plan, the guarantee of employees' pension benefits is frozen as of the date of the plan sponsor's bankruptcy filing, which may be months or years before the plan terminates.
- The PBGC's guarantee of pension benefits that become payable on a plant shutdown is limited if the shutdown occurred within five years of the bankruptcy filing.
- The complicated rules that govern the PBGC's pension guarantee for business owners are simplified.
- If PBGC takes over a terminated plan, the plan sponsor is required to pay a "termination premium" of $1,250 per participant per year for three years.
No insurance for defined contribution plans
One reason Congress enacted ERISA was "to prevent the 'great personal tragedy' suffered by employees whose vested benefits are not paid when pension plans are terminated." When a defined benefit plan is properly funded by its sponsor, its assets should be approximately equal to its liability, and any shortfall (including benefit improvements) should be amortized in a relatively short period of time. Before ERISA, employers and willing unions could agree to increase benefits with little thought to how to pay for them. A classic case of the unfortunate consequences of an underfunded pension plan is the 1963 shutdown of Studebaker automobile operations in South Bend, Indiana, in which 4,500 workers lost 85% of their vested benefits. One of ERISA's stated intentions was to minimize underfunding in defined benefit plans.
Defined contribution plans, by contrast and by definition, are always "fully funded" so Congress saw no need to provide insurance protection for participants in defined contribution plans. The Enron scandal in 2001 demonstrated one potential problem with defined contribution plans: the company had strongly encouraged its workers to invest their 401(k) plans in their employer itself, violating primary investment guidelines about diversification. When Enron went bankrupt, many workers lost not only their jobs but also most of the value of their retirement savings. Congress imposed fiduciary liability upon employers inside Section 404 of ERISA.
- When the PBGC takes over an insolvent pension plan, it becomes a general creditor of the plan sponsor.
- "President Ford Signing ERISA of 1974", Pension Benefit Guaranty Corporation, February 25, 2011.
- "Maximum Monthly Guarantee Tables", Pension Benefit Guaranty Corporation, October 22, 2018.
- "Multiemployer Insurance Program Facts ", Pension Benefit Guaranty Corporation, May 11, 2017.
- "PBGC Annual Report 2018", Pension Benefit Guaranty Corporation, November 15, 2018.
- "2018 Annual Report" (PDF). Pension Benefit Guaranty Corporation. Retrieved November 15, 2018.
- "2016 Pension Insurance Data Tables | Table S-3", Pension Benefit Guaranty Corporation, July 18, 2018.
- "PBGC Expands Missing Participants Program to Terminated 401(k) and Other Plans ", Pension Benefit Guaranty Corporation, December 21, 2017.
- "Expanded Missing Participants Program", Pension Benefit Guaranty Corporation, February 15, 2018
- "Premium Rates, Pension Benefit Guaranty Corporation.
- "What PBGC Guarantees". Pension Benefit Guaranty Corporation. Retrieved August 5, 2012.
- "Trump’s pick to run Labor’s pension agency: Mitch McConnell’s brother-in-law", May 18, 2018, Washington Post
- "Senate Finance Committee approves PBGC director nominee", November 15, 2018, Pensions & Investments Online
- Brill, Emily (January 9, 2019). "McConnell's In-Law Sees Time Run Out on PBGC Nomination". Law360.com. Retrieved January 13, 2019.
- Bradford, Hazel (April 30, 2019). "Senate confirms new PBGC director". Pensions & Investments. Retrieved May 2, 2019.
- Katz, Michael (May 3, 2019). "Senate Confirms Gordon Hartogensis as Director of PBGC". Chief Investment Officer. Retrieved May 12, 2019.
- Brannick, Nicholas (2004). "At the Crossroads of Three Codes: How Employers Are Using ERISA, the Tax Code, and Bankruptcy to Evade Their Pension Obligations". Ohio State Law Journal. 65 (6): 1606. Retrieved December 2, 2018.
- "Trends and Statistics on Plans", Pension Benefit Guaranty Corporation, February 25, 2011.
- "Fact Sheet: The Pension Protection Act of 2006: Ensuring Greater Retirement Security for American Workers". The White House. August 17, 2006. Retrieved December 16, 2007.
- Nachman Corp. v. Pension Benefit Guaranty Corporation 446 U.S. 359 (1980).
- Andrew Douglass and Bradley Kafka, "Legal Trends — Progress for Multiemployer Pension Plans," HRMagazine, Vol. 60, No. 2, 2015, pg. 71; OCLC 5826024469, ISSN 1047-3149
- Employee Benefit Research Institute, "Basics of the Pension Benefit Guaranty Corporation (PBGC)", November 2013
- Mary Williams Walsh, "Whoops! There Goes Another Pension Plan", New York Times, September 18, 2005