DOL Releases Field Bulletin With Changes
The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) issued a field bulletin with several principles to clarify its enforcement policies.
Field Assistance Bulletin 2026-01 includes four priorities designed to protect retirement savers. Its principles are:
- Focusing enforcement on the most egregious conduct and significant harm.
- Ensuring whenever possible and consistent with our mission that EBSA is not regulating by enforcement, guaranteeing fairness, prior notice, and clarity to the regulated community.
- Performing a proper review by senior agency officials of all critical enforcement initiatives.
- Committing that EBSA’s enforcement will be timely and responsive.
In its enforcement policies, EBSA says it will prioritize criminal cases that have done the “most significant harm” to the employee benefits system and savers. This includes investigations that show a breach of the duty of loyalty, along with targeting individuals and entities who act in bad faith when administering plan benefits. While the agency said it would take breaches of the duty of prudence seriously, it noted that “the costliest breaches of the duty of prudence tend to be accompanied by concomitant loyalty breaches.” Further, it would “avoid cases that unfairly second-guess process-based fiduciary judgments.”
EBSA also specifically named the promotion of environmental, social, and governance (ESG) objectives as one example of employers who could have acted in bad faith, alluding that such promotions would be “unrelated to participants’ best interests.”
“This update to our enforcement program makes it clear that our focus is on true bad actors whose actions harm the benefits American workers and retirees have earned for themselves and their families,” said Assistant Secretary of Labor for Employee Benefits Security Daniel Aronowitz. “We will no longer be second-guessing the prudent discretionary judgement of fiduciaries but instead will have even-handed and fair enforcement with a close relationship to the language of the law, guidance issued by the Department of Labor, or clearly established case law.”
The field bulletin addressed how EBSA will regulate its policies and principles. The agency said it would not regulate through enforcement activities or use enforcement to drive policy but rather use notice-and-comment rulemaking and sub-regulatory guidance.
With some exceptions, EBSA in its FAB states that the “factual predicate” for all enforcement activity must have a close nexus to:
- The plain language of ERISA’s text;
- Clearly established guidance in final Department regulations or prominently published sub-regulatory guidance; or
- Clearly established case law.
It also requires the deputy assistant secretary for Program Operations, the director of Enforcement, and each regional director to inform EBSA’s Assistant Secretary (or his delegate) of “significant enforcement activity, including proposed settlements and voluntary corrective actions,” at least two weeks before any pertinent deadline or proposed action, if possible.
Following complaints of EBSA’s enforcement timeline, the agency said it “commits to completing investigations within a reasonable timeframe and to conduct its enforcement activities properly and respectfully.” Routine investigations with smaller issues like delinquent employee contributions and disclosure and bonding violations should be completed within 18 months, unless more urgent circumstances arise.
Complex investigations must also be completed within 30 months unless other pressing issues come up. Considerations will also be given for cases in which EBSA’s enforcement activities are delayed for documented reasons beyond the agency’s control.
To ensure that investigations are timely, the director of Enforcement (or designee) must conduct quarterly reviews for any civil investigation still open for longer than the intended timeframes and will also report to the deputy assistant secretary for program operations and the assistant secretary quarterly on the status of any investigation that exceeds its timeframes.
The subagency came under fire in 2025 following allegations of issues with transparency and oversight with EBSA enforcement operations. Testimonies from industry experts claimed the subagency took years to complete investigations and lacked any responsiveness or speed in its inquiries.
Finally, the bulletin states that EBSA investigators will not do anything that threatens the agency’s independence. “This includes eliminating any appearance that EBSA enforcement activities and priorities are being coordinated with plaintiff lawyers pursuing private actions,” the bulletin read.
The comment follows investigations of common interest agreements by EBSA and plaintiff attorneys, in which the agency has been accused of sharing confidential information with.
HELP to host hearing
The Subcommittee on Health, Employment, Labor, and Pensions, chaired by Rep. Rick Allen (R-GA) will host a hearing on April 16 at 10:15 a.m. ET examining EBSA’s policies and priorities. Witnesses will include EBSA’s Assistant Secretary Daniel Aronowitz. The hearing will be livestreamed on the Committee’s YouTube page.
The DOL’s EBSA is responsible for protecting over 156 million workers, retirees, and their families, who are covered by approximately 2.6 million health plans, 801,000 private retirement plans, and 514,000 additional welfare benefit plans. Together, these plans hold nearly $13.8 trillion in assets.
Amanda Umpierrez is the Managing Editor of 401(k) Specialist magazine. She is a financial services reporter with nearly a decade of experience and a passion for telling stories and reporting news. She is originally from Queens, New York, but now resides in Denver, Colorado.