it depends.
of all the issues involved in cpa firm governance, mandatory retirement is one of the most hotly contested and debatable provisions in a partner agreement.
more: partner duties, prohibitions and grounds for expulsion | quick tip: partners investing in clients | why you might want an executive committee | buyout when a partner dies | why and how new partners buy in | a crash course in partner retirement/buyout plans
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first, let’s clarify what we mean by “mandatory retirement.”
cpa firms have changed webster’s definition of retirement. if you want to know when partners will be out of the firm, don’t ask them when they plan to retire.
whereas at top 50 firms, retiring cold turkey is often the rule rather than the exception, over 90 percent of partners at local firms do not leave the firm and stop working. instead, local firms’ definition of retirement is to announce their “retirement,” revert to a non-equity status and work for three to 10 more years, usually full time for a while and then part time. further, during their full-time years, they usually want to continue controlling their clients.
what mandatory retirement really means at most firms
two-thirds of partner agreements include a mandatory retirement provision. this provision usually requires partners to give up their equity but allows them to continue working in some fashion. a common stipulation is that if a “retired” partner wishes to continue working, either full or part time, this must be approved annually by the other partners.
the main reason that firms do not have mandatory retirement provisions is quite simple: the partners don’t ever want to be told how long they can work and what they can work on. the vast majority see retiring at 65 or 66 as retiring “young.”
at first glance, this may seem quite reasonable because, after all, it’s their firm. but this unlimited freedom for partners comes at a substantial cost to the firm.
- whether partners like to admit it or not (and most don’t!), as they age, their performance begins to drop off. this decline comes at a different age and in different ways for everyone, but at some point, it does happen. they may not keep their technical skills current and sharp. they may fall behind in their grasp and use of computers. all of this frustrates the heck out of other personnel, both partners and especially staff, because the aging partner is either unwilling or unable to change. ultimately, there is concern that the older partner will unnecessarily expose the firm to malpractice and client service risks.
- because there is no mandatory retirement provision, many partners find it difficult to confront the aging partner regarding retirement. having such a provision in the partner agreement makes it easier to get the issue onto the table.
- staff don’t want to work with partners who are losing it. can you blame them?
- as some partners age, their client base erodes and they find themselves without enough work to occupy them full time.
the danger of not having a mandatory retirement policy: lesson learned
i was working on a practice management review with a six-partner firm. part of my work involved confidential interviews with all the partners and a few key staff.
one of the partners, fred, was 69; all the others were 35 to 55. the results of my interviews revealed this about fred:
- his work quality was slipping.
- staff hated working for fred because his technical skills had eroded and he had difficulty concentrating.
his typical workday went something like this: arrive at 9:30 and distribute the mail. do some client work. around lunch time, go to the gym followed by lunch at home with his wife. return to the office about 2:30. do some more client work. take a nap at his desk. do some more work and go home at 4:00 p.m. all the other partners wanted fred to retire. but fred was a nice, sweet man. he had been a partner for 35 years, and a great one at that. he’d hired several of the current partners. because of all this, the partners could not confront fred about retiring with dignity.
so the partners asked me to tell fred it was time to retire. i immediately refused, telling them this was their job. but i could feel their pain. so, reluctantly, i agreed.
i met privately with fred and told him. to my surprise, he responded: “i’ve been waiting for them to tell me to retire for years. i’ll be happy to retire.”
two opposing views on mandatory retirement
anti-mandatory retirement. a group of partners in their late fifties and sixties, still vibrant and sharp, run a firm. they make good money, have great clients and love what they do. assuming they continue to enjoy good health and have no idea what they would do if they retired, why on earth would they agree to be forced to retire from their own firm upon reaching a certain age, say 65 or 66?
sure, at some point, they would love to turn the firm over to younger partners who write the partners’ retirement checks, but the partners want to do this on their own timeline, not the firm’s. they reason that by working well past a traditional retirement age, they continue to earn huge paychecks while doing a job they love, and when they are ready, they can always merge into a larger firm if there are no younger people to buy them out.
rosenberg’s sober warning: buyers are getting pickier. they are less willing to merge in firms with aging partners lacking bench strength. further, when a firm with aging partners is able to find a buyer, the deal terms are likely to be less attractive than they would have been five years ago.
pro-mandatory retirement. this camp has two long-term goals:
- to protect and perpetuate the firm’s largest asset, its client base, by providing for an orderly succession of firm leadership and the transition of client relationships to the next generation.
- to attract and retain top talent, who view the eventual transitioning of client duties to them as the promising career opportunity keeping them at the firm. when this promising future becomes endangered, they usually leave.
eighty percent of first-generation firms never make it to the second generation. one of several reasons is lack of a mandatory retirement policy.
is mandatory retirement legal?
laura b. friedel and russell i. shapiro are partners in the chicago-based law firm of levenfeld pearlstein, llc. they wrote an outstanding article in cpa practice management forumin 2011, summarizing the legal aspects of mandatory retirement perfectly. they have told me that despite the age of this article, nothing had changed through the end of 2017. the following are excerpts from their article.
“the federal age discrimination in employment act (adea) protects employees aged 40 and over from adverse action relating to their employment. many have believed that partners of professional service firms were exempt from this act because they were ’employers.’ in 2003, the supreme court ruled that the key to determining if people are employees is the extent that they supervise the performance of others and participate in the firm’s profit distribution, among other criteria. the mere fact that someone is a partner should not necessarily determine whether that person is an employee or an employer.
“the eeoc has established several factors that determine if a partner is an employee or an employer. they include the extent that a partner (1) can be fired by the firm, (2) is supervised by superiors, (3) influences the firm (voting) and (4) shares in the profits and liabilities in the firm.
“recent cases have also looked to the structure of the firm and the role partners have in running the firm. the more control over the firm that is vested in partners as opposed to an executive or management committee, the more likely the partners will be considered owners rather than employees.
“in recent years, the eeoc has investigated pwc and deloitte. in the case of deloitte, the eeoc demanded that the firm eliminate its mandatory retirement age requirement and offer compensation and reinstatement to retired partners. deloitte appealed. the aicpa says these eeoc initiatives were either dropped or settled.
“it should be noted that non-equity partners are considered employees because they don’t share in profits, have no vote and usually report to equity partners.”
the aicpa chimes in
in october 2014, barry melancon, president of the aicpa, wrote the eeoc on this matter, asserting that the eeoc’s initiatives “would be detrimental and disruptive to the accounting profession and thus, to the public at large.” he went on to state that “partners agree to mandatory retirement terms when signing their firms’ partnership agreements.”
melancon further wrote that “firms have adopted these mandatory retirement policies for sound business reasons. this business model has thrived and prospered for decades while also serving the public interest. in particular, retirement policy provisions allow for the predictable progression of lesser tenured and often more diverse individuals into the partnership, and facilitate the orderly transition of a firm’s clients from senior partners to those who will succeed them.”
what does this mean for cpa firms?
as firms grow, involving every partner in every decision becomes impractical. however, by the eeoc’s criteria, virtually all partners in cpa firms except the top 25 to 50 cpa firms qualify as employer/owners, not employees, because they have a vote, work fairly independently from others, participate in profits and share in the firm’s liabilities. at this point, the eeoc seems primarily focused on the huge national and regional firms. firms below the top 25-50 don’t have much to worry about on the mandatory retirement issue.
but friedel and shapiro warn: “don’t be surprised if you have trouble determining where your partners fall on the spectrum; the combination of somewhat vague legal standards and personal involvement often makes these determinations a daunting task.”
sample language for your partner agreement
- mandatory retirement of partners shall be required at age __. common alternatives: (a) a certain age such as 65, 66 or 67 or (b) the age a partner becomes eligible for full social security benefits.
- partners wishing to work beyond mandatory retirement age may do so, subject to the annual approval of the remaining partners.
- partners approved to work beyond mandatory retirement age shall cease to be equity partners and revert to a non-equity status such as consultant, of-counsel or non-equity partner.
- partners approved to work beyond mandatory retirement age shall be subject to the following conditions, determined at the sole discretion of the firm:
- which engagements and clients the partner works on
- for the work above, the role played by the partner, especially in the areas of controlling and managing client relationships and engagements
- number of hours worked and compensation
- compensation shall be determined on a case-by-case basis. common approaches:
- for partners working full time, their compensation is determined by the firm, just as non-equity partners’ pay is decided.
- for part-time partners, compensation is based on their billable hours collected. the pay is computed by multiplying billable hours times a statutory percentage, ranging from 35-50 percent, with more firms at 40 percent than other percentages. in these arrangements, partners are usually not paid for non-billable time.
- also, there is a financial incentive for part-time partners to bring in business. compensation for this is usually the same as it is for staff.
- in some cases, the part-time partner may be a founder of the firm or a partner who was a dominant partner prior to retirement and still plays an important role post-retirement. the firm acknowledges that these people provide value to the firm beyond their billable hours. as a result, a fixed salary is agreed upon rather than basing compensation solely on billable hours.