AB1170: Bill Text

AB1170,,1 2023 ASSEMBLY BILL 1170

March 22, 2024 - Introduced by Representatives Bare, Goyke, Baldeh, C. Anderson, Conley, Considine, Emerson, Jacobson, Joers, Ohnstad, Palmeri, Ratcliff, Shankland, Sinicki, Snodgrass, Stubbs and Subeck, cosponsored by Senators Hesselbein, Agard, Carpenter, L. Johnson, Larson, Roys and Spreitzer. Referred to Committee on State Affairs.

AB1170,,2 An Act to amend 16.705 (9), 71.05 (6) (a) 15., 71.21 (4) (a), 71.26 (2) (a) 4., 71.34 (1k) (g) and 71.45 (2) (a) 10.; and to create 14.57, 14.69, 20.517, 20.923 (4) (c) 7., 25.52, 71.07 (4s), 71.07 (4w), 71.10 (4) (ct) and (cu), 71.28 (4s), 71.28 (4w), 71.30 (3) (ct) and (cu), 71.47 (4s), 71.47 (4w), 71.49 (1) (ct) and (cu) and 230.08 (2) (en) of the statutes; relating to: creating WisEARNS and making an appropriation.

AB1170,,3 Analysis by the Legislative Reference Bureau

WisEARNS retirement savings program

This bill creates a program called “WisEARNS” to provide a defined contribution retirement savings plan for employees of private employers in this state that do not offer an employer-sponsored retirement plan or that do not offer such a plan to all employees. A defined contribution retirement savings plan is one that pays retirement benefits based on an individual’s account balance, rather than a prescribed formula.

The bill creates a WisEARNS Board that is attached to the Office of the State Treasurer. Under the bill, the board consists of the following nine members: the state treasurer or his or her designee; the secretary of financial institutions or his or her designee; two members appointed by the governor; two members appointed, respectively, by the speaker of the assembly and president of the senate; one member appointed by the state treasurer; one member appointed by the State of Wisconsin Investment Board; and one member appointed by the other members. The bill requires certain members to possess specified attributes or experience, and all members serve four-year terms.

Under the bill, the state treasurer recommends a candidate for executive director of the plan to the board, with the board approving the executive director. The executive director serves outside the classified service and appoints staff outside the classified service. The executive director serves at the pleasure of the board.

Under the bill, the board is required to establish the savings plan under which employees may contribute to retirement savings accounts through payroll deductions. Before establishing the plan, the board must conduct a legal analysis of the applicability of the Internal Revenue Code and the Employee Retirement Income Security Act of 1974 to the proposed plan, and must issue a request for information from prospective vendors of a variety of defined-contribution retirement accounts authorized under the Internal Revenue Code.

Under the bill, the default account type is a Roth IRA. The bill requires the board to design the plan and contract with third-party investment administrators to operate the plan. Among other requirements, the plan must do at least all of the following: 1) require automatic participation by private employers in this state; 2) require automatic enrollment for employees, but allow employees to opt out before any payroll deduction is made; 3) prohibit employer contributions to employee retirement accounts; and 4) allow an employee to roll over the amounts in an account to a different IRS-qualified retirement account.

Also under the bill, unless the employee directs otherwise, during the employee’s first year of enrollment in the plan, the employer must make a payroll deduction each pay period at a rate of 5 percent of the employee’s gross wages, with this rate increasing by 1 percent per year until the rate is the maximum rate allowed under the Internal Revenue Code. Under the plan, the eligible employee must have certain investment options within each account type, including a stable value or capital preservation fund and a target date index fund or age-based fund. An eligible employee’s first $400 of contributions must be deposited in a savings account that is not a retirement savings account, and thereafter, unless the employee selects a different investment option, the employee’s contributions must be deposited in a target date index fund or age-based fund. An employee must be allowed to opt out of this provision before the first $400 is deposited. The bill requires the board to establish a policy for emergency withdrawals from a WisEARNS savings account that is not a retirement savings account.

Under current law, DOA is authorized to purchase contractual services for most bodies of state government. Under the bill, the board is exempted from some of the requirements of contracting through DOA and instead must do all of the following before awarding the contract: 1) conduct a cost-benefit analysis of contracting with different vendors; 2) review and ensure the independence of the vendor and the vendor’s employees; and 3) require proof of background checks of the vendor and the vendor’s employees. The bill also requires the board to maintain a list of any vendor or party to the contract that violates the contract or requirements of the law, and to provide that list to DOA for inclusion on the ineligible list for state contracts.

Tax credits for retirement plan startup costs and automatic enrollment

The bill creates two income and franchise tax credits that may be claimed by small businesses that have 100 or fewer employees who received at least $5,000 in compensation during the preceding year. Both credits are based on similar federal tax credits. The first credit may be claimed by small businesses for the costs of setting up and administering a retirement plan and educating employees about the plan. The credit is 50 percent of the costs, limited to the greater of $500 or the lesser of $5,000 or $250 multiplied by the number of non-highly compensated employees who are eligible to participate in the plan. The credit may be claimed for three consecutive years and may be not be claimed for any costs that were deducted under federal law. The second credit may be claimed by small businesses that provide for automatic enrollment in their retirement plans. The credit is $500 and may be claimed for three consecutive years, beginning with the year in which the small business first provides for automatic enrollment.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

AB1170,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1170,1 Section 1. 14.57 of the statutes is created to read:

AB1170,,6 14.57 Same; attached boards.

AB1170,,7 (1) WisEARNS board. There is created a WisEARNS board that is attached to the state treasurer under s. 15.03. Of the members appointed under pars. (a) to (e), at least one must have experience in the field of investments, at least one must have experience as the owner of a business that employs between 5 and 50 people, and at least one must be an employee who is not eligible for or does not have access to an employer-sponsored retirement plan. The board shall consist of the following members appointed for 4-year terms:

AB1170,,8 (a) The state treasurer or his or her designee.

AB1170,,9 (b) The secretary of financial institutions or his or her designee.

AB1170,,10 (c) One member who has a favorable reputation for skill, knowledge, and experience in the field of retirement saving and investments, appointed by the governor.

AB1170,,11 (d) One member who has a favorable reputation for skill, knowledge, and experience relating to small business, appointed by the governor.

AB1170,,12 (e) One member who is a representative of an association representing employees or who has a favorable reputation for skill, knowledge, and experience in the interests of employees in retirement saving, appointed by the speaker of the assembly.

AB1170,,13 (f) One member who has a favorable reputation for skill, knowledge, and experience in the interests of employers in retirement saving, appointed by the president of the senate.

AB1170,,14 (g) One member who has a favorable reputation for skill, knowledge, and experience in retirement investment products or retirement plan designs, appointed by the state treasurer.

AB1170,,15 (h) One member appointed by the investment board.

AB1170,,16 (i) One member appointed, notwithstanding s. 15.07 (4), by a majority vote of all of the members identified in pars. (a) to (h).

AB1170,,17 (2) Membership prohibited. No individual appointed under sub. (1) (a) to (h) may be a dealer or broker in securities, or be employed by an entity that is primarily a dealer or broker in securities, and any member who accepts such employment shall vacate his or her membership.

AB1170,2 Section 2. 14.69 of the statutes is created to read:

AB1170,,19 14.69 WisEARNS program. (1) Definitions. In this section:

AB1170,,20 (a) “Board” means the WisEARNS board.

AB1170,,21 (b) “Earnings” means all remuneration for employment or services provided to an individual in this state, including salary, fees, bonuses, and including the cash value of all remuneration paid in any medium other than cash.

AB1170,,22 (c) “Eligible employee” means an employee who is 18 years of age or older who works in this state and whose private employer does not offer a retirement savings plan or who is not eligible to participate in a qualified retirement savings plan offered by his or her private employer.

AB1170,,23 (d) “Investment administrator” means the vendor selected under sub. (3) (e).

AB1170,,24 (e) “Plan” means the WisEARNS plan established under sub. (3).

AB1170,,25 (f) “Private employer” means any person engaging in any activity, enterprise or business in this state that has conducted such activity, enterprise, or business in this state for at least 2 years after the effective date of this paragraph .... [LRB inserts date], and did not offer a retirement plan qualified under the Internal Revenue Code during those 2 years.

AB1170,,26 (g) “WisEARNS retirement account” means a retirement savings account established under the plan.

AB1170,,27 (h) “WisEARNS savings account” means a savings account established under the plan that is not a retirement savings account.

AB1170,,28 (2) Duties of treasurer, executive director, and board. (a) The treasurer shall recommend an executive director of the plan to the board, which shall appoint an executive director outside the classified service, to serve at the pleasure of the board. The executive director may not be a member of the board.

AB1170,,29 (b) The executive director appointed under par. (a) shall appoint staff for the plan outside the classified service.

AB1170,,30 (3) Establishment of plan. The board shall establish, implement, and oversee a plan that meets the requirements specified in sub. (8) that shall enroll eligible employees beginning not more than 2 years after the effective date of this subsection .... [LRB inserts date]. Before establishing and implementing the plan, the board shall do all of the following:

AB1170,,31 (a) Conduct a legal analysis regarding the applicability of the federal Employee Retirement Income Security Act of 1974, 29 USC 1001 to 1461, and the Internal Revenue Code to the proposed plan.

AB1170,,32 (b) Enter into interagency agreements with the department of revenue, the department of financial institutions, and the department of workforce development to assist the board in providing outreach services to private employers and employees.

AB1170,,33 (c) Prepare and issue a request for information from prospective vendors of retirement savings accounts described in 26 USC 408 (a), individual retirement annuities described in 26 USC 408 (b), individual retirement bonds, and individual savings accounts to determine the feasibility of the proposed plan and the existence of plans in the private market that meet the requirements set forth in sub. (8).

AB1170,,34 (d) Investigate ways of allowing individuals who are not automatically enrolled in the plan to enroll in the plan and make contributions to retirement savings accounts.

AB1170,,35 (e) Based on the results of the request for information under par. (c), prepare and issue a request for proposals from prospective vendors and select a vendor. The board shall determine the factors to be considered in selecting a vendor for the plan, which shall include the ability of the vendor to meet all of the requirements of the plan set forth in sub. (8) (a) to (z). Sections 16.705 and 16.75 do not apply to a contract entered into under this section. Before awarding a contract under this section, the board shall do all of the following:

AB1170,,36 1. Conduct a cost-benefit analysis to identify and compare the total cost, quality, and technical expertise of the vendors that submitted proposals.

AB1170,,37 2. Review the independence and relationship, if any, of the vendors that submitted proposals to employees of the board and the disclosure of any former employment of the vendor or employees of the vendor with the board, to minimize the likelihood of selection of a vendor that provides or is likely to provide services to industries, client groups, or individuals who are the object of state regulation or the recipients of state funding to a degree that the vendor’s independence would be compromised.

AB1170,,38 3. If the vendor or employees of the vendor have access to federal tax information received directly from the federal internal revenue service or from a source that is authorized by the federal internal revenue service, for the performance of services under the contract under this section, require proof of a background investigation on each individual performing the services. Such a background check shall meet the standards established by the federal internal revenue service under 26 USC 6103 (p) (4) (C).

AB1170,,39 (f) Ensure compliance by the plan with all applicable provisions of the Internal Revenue Code and U.S. department of treasury regulations.

AB1170,,40 (5) Ineligible vendor list. The board shall maintain a list of persons that are or have been a party to a contract under this section that have violated a provision of this section or a contract under this section. The board shall annually forward this list to the department of administration for inclusion in the ineligible vendor list under s. 16.705 (9).

AB1170,,41 (6) Powers of board. The board may do any of the following:

AB1170,,42 (a) Enter into contracts or other arrangements for any of the following services as necessary for implementing and overseeing the plan and otherwise carrying out the purposes of this section:

AB1170,,43 1. The services of financial institutions and depositories and of consultants, accountants, attorneys, investment advisers, investment administrators, 3rd-party administrators, and other professionals.

AB1170,,44 2. The services of other state agencies under interagency agreements under sub. (3) (b).

AB1170,,45 (b) Solicit and accept contributions, gifts, grants, and bequests for the WisEARNS plan administration trust fund or for any other purpose for which a contribution, gift, grant, or bequest is made and received. Moneys received under this paragraph shall be deposited in the WisEARNS plan administration trust fund.

AB1170,,46 (c) Enter into agreements with other governmental entities in this state or outside this state, which maintain retirement savings programs similar to WisEARNS, to collectively invest the assets of the plan to the extent allowed by federal law to benefit retirement savings account holders participating in the plan by achieving efficiencies designed to minimize costs for the plan and retirement savings account holders participating in the plan.

AB1170,,47 (7) Duties of board. The board shall do all of the following:

AB1170,,48 (a) Promulgate rules for the administration of the plan.

AB1170,,49 (b) Collect application, account, or administrative fees to defray the costs of administering the plan at the lowest cost possible. Fees collected under this paragraph shall be deposited in the WisEARNS plan administration trust fund. Fees under this paragraph may not be linked to the value of the trust fund.

AB1170,,50 (c) Establish a policy for the investment of moneys contributed to a retirement savings account, and direct the investment of such moneys in a manner that is consistent with any investment restrictions established by the board. Those investment restrictions shall be consistent with the objectives of the plan and with the standard of responsibility specified in s. 25.15 (2).

AB1170,,51 (d) Evaluate the need for, and procure as needed, insurance to cover any liabilities of the plan and to cover each member of the board for loss or liability resulting from the board member’s act or omission as a member of the board.

AB1170,,52 (e) Determine the eligibility of employers, employees, or individuals to participate in the plan.

AB1170,,53 (f) Establish policies for emergency withdrawals from WisEARNS savings accounts.

AB1170,,54 (g) Annually review the performance of vendors regarding, at a minimum, investment returns, fees, and customer service, and publish results of the review on the plan’s Internet site.

AB1170,,55 (h) Exercise any other powers as may be necessary to oversee the plan and otherwise carry out the purposes of this section.

AB1170,,56 (8) Requirements for plan. The board shall design the plan so that it meets all of the following requirements:

AB1170,,57 (a) The plan allows eligible individuals employed for compensation in this state by a private employer in this state to contribute to WisEARNS accounts through payroll deductions. The plan allows self-employed individuals with earnings in this state to contribute to WisEARNS accounts.

AB1170,,58 (b) The plan requires all private employers in this state to withhold and remit employee contributions to the plan through payroll deductions. If an employer offers a qualified retirement plan under the Internal Revenue Code, including a plan qualified under section 401 (a) or (k), 403 (a) or (b), 408 (k), or 457 (b) of the Internal Revenue Code, the employer does not need to withhold and remit employee contributions for employees who are eligible to participate in the employer-sponsored plan.

AB1170,,59 (c) Except as provided in par. (d), the plan provides that the default individual retirement account is a Roth IRA account.

AB1170,,60 (d) If the plan offers options for account types other than a Roth IRA, the plan allows an enrolled eligible employee to select any of these other account types for investing contributions under the plan.

AB1170,,61 (e) The plan provides an eligible employee who is enrolled in the plan with multiple investment options within each account type, which may include any of the following investment options: