Imogene is a hand on the steering wheel of the morning route I contract to the county school district outside Americus, Georgia. She’s 57. She’s driven the 66-stop run for 14 years without a W-2, because the W-2 would have pulled the school employees’ retirement system into the contract, and I don’t remit to systems I’m not asked to. Her take-home is $16.40 an hour. The employer contribution I don’t remit is $1.85 of every hour she drives. The contribution is mine. The bus is mine. The seats are full of the reader’s children. The lesson begins.
Tessie is a hand on the evisceration line at the poultry plant I own outside Shelby, North Carolina. She’s 49. She’s been on the line 23 years. Her right hand has learned to cut the tendon at the second knuckle in 3.1 seconds, which is the speed at which the plant runs. Her wage is $14.80 an hour. Her 401(k) balance is $87,420. I’m the plan administrator. I pick the funds. The chicken breast in your freezer came through 3.1 seconds of her hand and 23 years of a menu I haven’t been asked to change.
Mr. Rogers writes in the National Review this morning on the new state laws compelling pension trustees to invest “solely for the benefit of plan participants.” He cites Spence v. American Airlines and the $4.6 million in plaintiff’s fees. He celebrates 31 legislatures. I’ve read Mr. Rogers this morning with two ledgers in front of me — Imogene’s bus route and Tessie’s plan. He hasn’t drawn the arithmetic. We will.
Dear Fellow Plan Administrator, I write to you, the men and women who sit where I sit, because Mr. Rogers has described our office in op-ed prose. He hasn’t priced it.
Two ledgers. The first is the 1099 I run on Imogene’s bus. The second is the menu I run on Tessie’s plan. Both are mine. Both are legal. Both do exactly what Mr. Rogers’s 31 laws cannot do.
Read the first ledger once for the dollar and once for what the dollar cost her.
I lease Imogene’s bus to the district for $4,820 a month. The district pays $4,820. I pay Imogene $16.40 an hour. That’s $30,176 a year, 1,840 hours of work. I pay her as a 1099 independent contractor. A W-2 driver on the district’s payroll would cost the district the employer retirement contribution of $1.85 an hour. The 1099 designation moves the $1.85 off my books and onto hers. The $1.85 is mine. Times 47 drivers. Times 1,840 hours each. The aggregate I keep is $159,988 a year. The system was built for the people I don’t employ.
Read the second ledger once for the basis point and once for what the basis point cost Tessie.
The 401(k) at my plant covers 1,840 participants. The plan holds $161 million in assets. My record-keeper fee is 18 basis points. That’s $289,800 a year off the top, $157.50 a year off each participant, $13.13 a month off Tessie. The index share class would cost me 4 basis points. The 14 basis points between mine and the index’s is $225,400 a year I don’t return to the 1,840 hands. The menu is the audit trail. The menu omits the index because the index would cost $225,400 a year in fees Mr. Rogers’s audit trail hasn’t pinned yet. Mr. Rogers wants the paper trail of every proxy vote. The paper trail I keep is the ledger of the fund menu. The menu is the trail.
The 1099 keeps Imogene off the membership rolls. The menu keeps Tessie’s balance where the index would have lifted it. The first denies the participant the plan. The second admits the participant and skims the plan. Both are my department. Both leave Mr. Rogers’s 31 laws standing at the gate while the arithmetic rides through.
Let me tell you what the $84 is on Imogene’s bus.
The T-piece on her steering column is loose. The bus pulls left at 38. The mechanic wrote the work order. The work order is $84. The $84 is mine to keep. I haven’t approved the work order. Imogene drives the bus with 66 children aboard because the $84 is mine to keep. The pension Mr. Rogers is protecting is the pension I have made sure Imogene is not in. The $84 is mine. The $1.85 is mine. The pull is to the left.
“Thou oughtest therefore to have put my money to the exchangers, and then at my coming I should have received mine own with usury.” — Matthew 25:27
The master in the parable left money with the servants. The servants were to put the money to the exchangers. The exchangers were to return the money with interest. The parable is the cleanest endorsement of fiduciary duty in the Christian corpus. I am the master. The money is the employer contribution. The servants are Imogene and the 46 others. The exchangers are my books. The usury is mine. I’ve put the money to the exchangers. The exchangers have returned the money with usury. The master is satisfied. The servants are 57 years old and the steering pulls left.
The compound is hers. The $1.85 is hers at 6.5% for 32 years. The number is $340,509. The compound is hers. I haven’t paid it in. The system doesn’t know her name. I’ve made sure of that.
Now widen the frame. The 1099 architecture I run in Americus isn’t unusual in my industry. I run the same architecture in the custodial contract I hold with the county hospital in Tifton, in the food-services contract I hold with the state technical college in Marietta, in the security contract I hold with the municipal parking authority in Valdosta. The architecture is the same in each: classify the worker as an independent contractor; decline to remit the employer pension contribution; keep the contribution as margin; ensure the worker never becomes a plan participant. The 47 drivers in Americus are 312 workers across four contracts. The aggregate I keep by not remitting is $1,062,048 a year. The plans my workers don’t enter hold $6.85 trillion in assets between them. The $1,062,048 is mine. The $6.85 trillion is theirs. The architecture is mine.
The menu isn’t unusual either. I’ve been grading men into this arithmetic for 30 years. The textbook I assigned runs Imogene’s case in Chapter 7, “Independent Contractor Architecture as a Pension-Avoidance Vehicle,” and Tessie’s case in Chapter 11, “Menu Architecture as a Participant-Fee Extract.” The textbook sells 4,200 copies a year. Three of the state universities whose pension funds hold your contributions require it. One of my former students — call him Mr. Halverson, Class of ‘09, Warden University, my seminar on fiduciary arithmetic — sits on the 401(k) committee at a Fortune 500 manufacturer outside your town. He runs the same menu I run. He omits the index for the same reason I omit the index. He’s not an aberration. He’s the curriculum. The 31 laws Mr. Rogers celebrates are 31 attempts to legislate against a curriculum the seminar’s been graduating for 30 years.
The line runs on. The menu runs on. The 3.1 seconds runs on. Tessie’s hand cuts the tendon at 3.1 seconds, and will cut the tendon at 3.1 seconds until the tendons give. Imogene drives the bus at 6:42 a.m., and will drive the bus at 6:42 a.m. until the steering does worse than pull. The 401(k) at the plant is a number I don’t have to provide. The retirement at 67 is a number Mr. Rogers has decided Imogene and Tessie are owed. I haven’t decided it for either of them. The 31 laws Mr. Rogers celebrates are the laws I keep professionally. They keep me in the menu. They keep me off the membership rolls. The seminar keeps graduating. The tendons will give before the menu does. The steering will pull before the system knows either name.
I am, on these contracts, the man the protection was written to leave alone.
Sterling A. Varice holds the Hayek-Friedman Chair and serves as Dean of Instruction at Warden University’s College of Business and Economics in Richmond, Virginia. He is the author of three textbooks: Divine Mandates for Labor Utilization, Social Obligations for Profit Maximization, and Calibrated Deprivation: A Manager’s Guide to Employee Motivation.