House bills target DOL’s ERISA enforcement, litigation activity 

Sponsored by several House Republicans — including Education and Workforce Committee Chair Tim Walberg, R-MI — the EBSA Investigations Transparency Act (HR 2869) would require DOL to provide Congress with annual reports about the status of ongoing ERISA enforcement activity. Spurred by employer objections to EBSA investigations that can continue for years without resolution, the bill’s required reports would include the following information:

• The EBSA regional office conducting the investigation and date the matter was opened
• When the agency first requested documents from the target of the investigation
• If the investigation is still ongoing more than three years after the initial document request date, information explaining why the investigation remains open and an estimated conclusion date

The reports wouldn’t identify any plan sponsors, fiduciaries, service providers or participants that are the subject of an investigation.

Another bill, the Balance the Scales Act (HR 2958), would prohibit DOL from providing assistance to private litigants — including disclosing information obtained during investigations — without first entering into a written agreement that details the nature and scope of the assistance and providing a copy to any employer, plan sponsor or fiduciary that may be adversely affected. The bill follows last year’s revelation that DOL secretly 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. This has been deeply troubling to the plan sponsor community and some lawmakers, prompting calls from Republican House Education and Workforce Committee leaders for DOL’s Inspector General to conduct an independent investigation. (DOL’s Inspector General recently confirmed that an investigation is underway).

The bill would also require DOL to give Congress an annual report that includes the following information for all such agreements in effect during the year:

• A copy of the agreement (redacted to remove information that could identify any employer, sponsor, fiduciary, service provider, or other potential defendant)
• A detailed description of the nature and scope of assistance provided, including what information DOL has shared with the private litigant and detailed logs of all verbal communications and meetings
• An explanation of how the agreement aligns with ERISA’s goal of encouraging the voluntary, employer-based retirement system