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Law & Policy

DOL tightens oversight of ERISA enforcement activities 

April 28, 2026
The Department of Labor (DOL) recently issued a field assistance bulletin (FAB) announcing four guiding principles for the agency’s ERISA enforcement activity. Under these principles, DOL will prioritize investigations of the most egregious violations, provide advance notice of the agency’s ERISA interpretations, commit to completing investigations within reasonable timeframes, and require senior leadership to review significant enforcement matters. Agency leadership believes these principles will promote “transparency, consistency, and the rule of law.” The FAB doesn’t explain how DOL will apply these principles to investigations and enforcement actions that are already in progress.

Overview of DOL enforcement

The Employee Benefits Security Administration (EBSA) is the DOL agency responsible for ERISA enforcement. Investigations and enforcement activities are conducted primarily by investigators in regional and district offices. EBSA’s Office of Enforcement formulates national enforcement projects — which the agency updated earlier this year — to guide these activities.
  • What is a FAB?
    Unlike advisory opinions and information letters — which are typically directed at ERISA plan sponsors, fiduciaries, or service providers — FABs are a form of internal guidance typically addressed to EBSA’s Office of Enforcement and directors of regional offices. FABs typically clarify the agency’s interpretations of ERISA’s statutory provisions or DOL regulations to assist in enforcement efforts. As a result, ERISA plan sponsors and fiduciaries often look to FABs for guidance on DOL’s views.
  • How is this FAB different?
    In the past, FABs have only been issued by other EBSA offices responsible for interpreting ERISA, such as the Office of Regulations and Interpretations or Office of Health Plan Standards and Compliance Assistance. However, this FAB was issued by the politically appointed Assistant Secretary, the seniormost EBSA official who leads the agency. This suggests a shift to more centralized oversight of regional and district offices’ enforcement efforts.

New guiding principles for ERISA enforcement

The FAB identifies four guiding principles designed to ensure EBSA’s enforcement activities are “fair, evenhanded, responsive, and focused.” These principles apply to retirement, health, disability, and other ERISA-covered plans.
  • Focus on the most egregious conduct and significant harm

    This principle establishes how EBSA will use its enforcement discretion in both civil enforcement and criminal investigations.

    • Civil enforcement. EBSA will prioritize investigations where there is direct evidence of breaches of the duty of loyalty — when a fiduciary fails to act for the exclusive purpose of providing benefits to participants and beneficiaries — or prohibited transactions involving conflicts of interest. The agency will target bad faith conduct, improper administration of benefits, and misappropriation of plan assets. The FAB explains that this includes actions fiduciaries take to enrich themselves or advance goals unrelated to participants’ best interests, including the promotion of environmental, social, or governance (ESG) objectives.
    • Less focus on prudence by itself. The FAB explains that while breaches of the duty of prudence can threaten the security of participants’ benefits, the costliest prudence breaches typically occur alongside duty-of-loyalty violations. Where an enforcement action focuses solely on prudence violations, EBSA will avoid “unfairly second-guess[ing] process-based fiduciary judgments.”
    • Application to health and welfare plans. Although the discussion of this enforcement principle suggests a focus on retirement plans, the FAB indicates that EBSA remains committed to protecting participant benefits more broadly, including enforcement of ERISA’s health benefit requirements (including the mental health parity rules), as well as disclosure, claims processing, and adjudication requirements.
    • Criminal investigations. EBSA will prioritize criminal cases to “address the most significant harm to the employee benefits system.” The FAB doesn’t explain how the agency will determine if a criminal case meets this standard.
  • Avoid regulating through enforcement
    Wherever possible, EBSA will establish the agency’s interpretations of ERISA and set policy through notice and comment rulemaking and sub-regulatory guidance — not through enforcement actions. The FAB explains that this principle promotes fairness by ensuring that new legal theories or ERISA interpretations aren’t first advanced in enforcement actions. Except in exigent circumstances involving significant harm, enforcement actions must be closely tied to ERISA’s plain language, final DOL regulations or prominent sub-regulatory guidance, or federal courts’ clearly established case law.
  • Require review of significant enforcement activities

    EBSA officials must notify the Assistant Secretary (or their delegate) at least two weeks before any significant enforcement activity, including proposed settlements and voluntary corrective actions. This notice should include:

    • A fair and clear description of the matter’s significance
    • A detailed summary of the matter and rationale for the agency’s recommendations
    • Copies of all material written correspondence between the agency and target of the investigation or their counsel

    Enforcement actions will be considered significant if they involve:

    • New legal theories or areas of enforcement
    • Issues where federal appeals courts have reached different conclusions or are reasonably likely to do so
    • Views that deviate from prior EBSA positions
    • Other matters of importance to the Assistant Secretary
  • Ensure responsive and timely enforcement

    The FAB acknowledges past concerns from ERISA plan sponsors and Congress that some EBSA investigations remain ongoing for excessive time periods. Unless there are “exigent circumstances,” the FAB commits to completing investigations within the following timeframes:

    • Within 18 months for routine cases involving less complicated issues (e.g., delinquent employee contributions, disclosure, and bonding violations)
    • Within 30 months for more complex investigations

    EBSA’s Director of Enforcement must conduct quarterly reviews of any civil investigation that exceeds these timeframes, take corrective action, and make status reports to agency leadership. The FAB also counsels EBSA investigators to take available opportunities to provide compliance assistance to “conscientious” plan sponsors and service providers.

Coordination with private litigants

A separate discussion in the FAB prohibits EBSA investigators and staff from taking actions that compromise the agency’s independence, integrity, or credibility with ERISA plan sponsors or participants, including eliminating any appearance of coordination with lawyers representing private litigants. EBSA previously received criticism from some Congressional leaders and the plan sponsor community following an instance where the agency apparently furnished investigatory materials to plaintiffs’ attorneys in a lawsuit against the target of that investigation, even though DOL wasn’t a party to the lawsuit. The FAB confirms that a DOL Inspector General investigation of that matter remains ongoing and indicates that EBSA may update the guiding principles based on the findings.

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Cheryl Hughes
Matthew Calloway
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