News Archive

"The guidance ... clarifies that proxy advisers 'regularly fit the definition of functional fiduciaries' under ERISA if they exercise control over shareholder votes or provide investment advice for a fee to retirement plans. At the same time, the agency signaled support for certain state-level regulations of the industry, saying laws that require disclosures when advice is not based on financial considerations would 'generally not be preempted' by ERISA."  MORE >>

"While the Proposed Regulation acknowledges the fiduciary duty to monitor DIAs at regular intervals, the DOL opted not to include a monitoring safe harbor ... The Proposed Regulation's safe harbor protects the selection of individual DIAs but does not extend to overall investment menu curation ... [T]his gap leaves fiduciaries without safe harbor protection for an actively litigated aspect of plan governance.... The Proposed Regulation expressly excludes brokerage windows, self-directed brokerage accounts, and similar arrangements from the definition of DIA."  MORE >>

"The statutory language in the CAA requires plans to conduct the NQTL comparative analysis.... [S]elf-funded plans must be able to produce a written NQTL comparative analysis demonstrating parity between mental health/substance use disorder benefits and medical/surgical benefits, upon request by regulators or participants. Litigation related to the 2024 MHPAEA final rules hasn't eliminated or paused this requirement."  MORE >>

"Advisors should remember -- and remind clients -- that process is the key to fiduciary responsibilities.... [T]he understanding of product neutrality will be a nice complement to a prudent process.... Advisors can buy some time (while the DOL finalizes the regulation) before making changes to investment policy statements and related processes by gaining an understanding of the ways in which their current processes take into account these six factors."  MORE >>

"The FAB represents a meaningful recalibration of EBSA's enforcement posture.... [T]he emphasis on loyalty over prudence as an enforcement priority ... underscores the importance of maintaining robust fiduciary governance processes and thoroughly documenting decision-making.... [T]he explicit mention of ESG objectives as an example of goals 'unrelated to participants' best interests' signals continued scrutiny of ESG-related investment strategies and activities (including proxy voting) for ERISA plans.... [T]he commitment not to regulate by enforcement should provide an opportunity for fiduciaries to defend good faith processes.... [T]he new investigation timelines and quarterly review requirements reflect a welcome commitment to efficiency."  MORE >>

"The Conduent incident is one of the largest reported health care data breaches in U.S. history and appears to have involved sensitive personal and protected health information. Even when a breach occurs at a third-party subcontractor, the employers' health plans may still have obligations under HIPAA. Because of the significant potential penalties for failure to report a breach, it is important to for employers with self-funded group health plans to take prompt steps to assess whether the plan's data has been affected and whether any obligations have been triggered for the plan."  MORE >>

"Employee stock ownership plan (ESOP) fiduciaries, sponsors, and service providers should be particularly interested in the new guidance [FAB 2026-01], which rejects certain past practices that many in the ESOP space have long considered abusive."  MORE >>

"[A]ffordability is the resounding concern for employers, consistent with last year's results.... Other areas of consistent focus from the country's top employers were the need for enhanced transparency and more sophisticated data analytics tools, signaling their intent to more closely scrutinize newly available information to effectively combat price increases."  MORE >>

"Advisors who wish to make available a managed account solution should either negotiate this service (and any resulting fees) at the outset of the relationship, or, for existing plan clients, should be careful that they are not making fiduciary recommendations that would increase their fees, unless they are relying on PTE 2020-02. Plan sponsors who are considering offering a managed account solution also should be aware of these PT issues and related considerations in evaluating the fiduciary advisor's services and fees."  MORE >>

"[Y]our 401(k) plan may permit suspension of loan repayments for the entire period of the military leave even if that period exceeds one year, and the term of the loan may be extended to the maximum permissible term of the loan plus the period of military leave."  MORE >>

"ERIC recommends that the Department go even further in final regulations.... [T]he Department must clearly state that GPOs must disclose the compensation they receive in connection with providing 'pharmacy benefit management services' to a self-insured plan.... [T]he Department must also specifically enumerate a list of entities that would be subject to these proposed regulations through their affiliation with offshore GPOs ... In short, each and every entity woven into this type of structure must be listed as an entity that is subject to the proposed Compensation Disclosure requirements."  MORE >>

"As employers prepare for a fresh crop of summer interns, they should review their 401(k) plan documents to determine whether summer interns would be eligible to participate in the plan. Often, employers incorrectly assume that summer interns are excluded, which can result in costly plan corrections."  MORE >>

"The construction industry exemption has several criteria, some of which are poorly defined even after 45 years. It often comes as an unpleasant surprise to construction employers that they are not eligible for the exemption ... Most funds take the position that off-site work does not usually qualify.... [W]ithdrawal liability can be triggered by reductions in force, location closures, mergers and acquisitions, asset sales and other circumstances."  MORE >>

"The proposed rule appropriately recognizes that disclosure alone is insufficient without standardization. Disclosures must be structured in a manner that enables meaningful comparison across PBMs, contract arrangements, and plan years. Without comparability, even detailed disclosures will fail to support effective fiduciary decision-making or competition in the marketplace."  MORE >>

"[This] limits forecast is projected using two assumption sets. One is based on the current trailing 12 months of CPI and the second assumes that year-to-date CPI (since September 30, 2025) will continue to increase each month through September 30, 2026, by an estimated 25 basis points (3.0% annual).... Projecting monthly increases of 0.25% through September 2026 results in an annual increase of about 3.2% for our 6-month actual/6-month forecast projection."  MORE >>

55 pages. "[This] report ... offers clear principles and policy-relevant guidelines to help ingrain lifetime income as a core default feature of modern retirement systems ... [1] Ensure that the different tiers of the retirement system in combination provide sufficient guaranteed income for life.... [2] If a DC retirement savings system is mandatory, make annuitization mandatory.... [3] Provided that a minimum level of lifetime income is assured, require partial rather than full annuitization to allow for spending flexibility.... [4] Protect against inflation risk by providing for variable annuities ... [5] Protect against interest rate risk by allowing retirees to spread the purchase of lifetime income over more than one year[.]"  MORE >>

Video of April 16 hearing. Opening Statement: Rep. Rick Allen (R-GA); Witness: The Honorable Daniel Aronowitz, Assistant Secretary, Employee Benefits Security Administration (EBSA).  MORE >>

"To provide clarity and expand access to these flexible contribution options, the [Optimizing Participant Tax Incentives through Optional Noncash Selections -- or OPTIONS -- Act (HR 8314)] would amend Section 125 of the Internal Revenue Code to establish a 'qualified benefits option plan' allowing participants to elect to allocate employer contributions among qualified benefits. The legislation further stipulates, however, that participants may not elect to receive cash or any other taxable benefits instead of qualified benefits."  MORE >>

"Receiving equity from a U.S. company if you are not a U.S. citizen or resident alien can raise questions about how and when that equity is taxed in the United States.... One common consideration is whether to file an 83(b) election, a time-sensitive U.S. tax election that can significantly affect how restricted stock or similar property is taxed.... This FAQ outlines when a non-U.S. person may benefit from an 83(b) election, what's required to make one and how the process works."  MORE >>

"This Technical Release addresses two issues. First, to the extent proxy advisory firms either: [1] exercise authority or control over shareholder rights attributable to shares that are ERISA plan assets, including the voting of proxies; or [2] provide advice for a fee to ERISA plans about how such plans should exercise proxy voting rights attributable to shares of stock they own, this Technical Release clarifies that such proxy advisory firms must meet ERISA's functional fiduciary requirements.

"Second, and relatedly, where a state law mandates disclosure to investors by proxy advisory firms only when they make recommendations other than for the purpose of maximizing risk-adjusted return for the advisee, such laws are generally not preempted by ERISA. ERISA fiduciary provisions do not alter this result. ERISA's fiduciary duties require that actions be taken with respect to a plan investor only for the purpose of maximizing risk-adjusted financial return. For that reason, no plan governed by ERISA should ever receive a disclosure under such a state disclosure law, and, accordingly, no relationship between that law and any ERISA plan would be created. Consequently, such a state law neither has an impermissible connection with, nor makes a prohibited reference to, ERISA plans, and it generally would not be preempted by ERISA."  MORE >>

"[Executive Order 14366] makes clear that EBSA should not just examine whether proxy advisors' actions meet the test to make them investment advice fiduciaries but also asked the department to look at other actors who manage, or advise those that manage, the rights connected to shares of stock, such as the right to vote for board members, held by ERISA-covered plans. Proxy advisors have played a central role in politicizing the capital markets by pursuing ESG investing and DEI positions, but they aren't alone. At the President's directive, EBSA's Technical Release looks beyond the proxy advisors to consider when the actions of others, such as large asset managers, sovereign wealth funds, and the overseers of the proxy plumbing, render them investment advice fiduciaries."  MORE >>

"Democrat leaders in the House of Representatives called on the Inspector General for the [DOL] to look into why the ERISA Advisory Council (EAC) has not met since 2024 and has not been carrying out its required duties or swearing in new members."  MORE >>

"Every year, thousands of Applicable Large Employers (ALEs) across the country hand off their ACA reporting obligations to a payroll vendor, a benefits administrator, or a general-purpose HR technology platform and trust that the job is being done correctly.... [T]he accuracy of the Forms 1094-C and 1095-C matters enormously ... This article is for employers who want to understand what accurate ACA reporting actually looks like -- and for the brokers and advisors who serve them. Because the stakes are too high to leave this to chance."  MORE >>

"The DOL is signaling that how plan fiduciaries make decisions matters more than what they ultimately select. A robust, well-documented investment selection process, grounded in the proposed rule's six factors, will be critical to managing fiduciary risk, particularly as plans consider more complex or alternative investment options. The proposed rule provides a roadmap for how fiduciaries should select (and ultimately monitor) investments, and how to document their process."  MORE >>

"[Morningstar's] diversified test portfolio gained 18.3% in 2025, compared to 13.3% for a basic 60/40 portfolio consisting of U.S. stocks and investment-grade bonds.... [T]raditional methods outperformed in the long-term ... Over a 10-year period, 60/40 portfolios delivered higher risk-adjusted returns at 9.55%, compared to 8.19% for diversified portfolios. In two decades, traditional portfolios returned 9.68% relative to 7.13% for diversified portfolios."  MORE >>