DOL ERISA Enforcement Memo Reflects Changed Priorities

Guiding principles for EBSA’s changed enforcement priorities

The memorandum, which was issued as Field Assistance Bulletin No. 2026-01 (FAB 2026-01 or FAB), explains guiding principles to carry out the changed enforcement priorities.

EBSA will focus on the most egregious conduct and on actions causing significant harm

EBSA conducts both criminal and civil investigations. EBSA will now prioritize criminal investigations that address the most significant harm to the employee benefits system.

With respect to civil enforcement, the FAB says that while ERISA’s requirement that fiduciaries act with the care, skill, prudence and diligence under the circumstances that a “prudent man,” acting in like capacity and familiar with such matters, would use (duty of prudence) remains important, emphasis will now be placed on violations of the duty of loyalty. EBSA will focus on conduct designed to enrich fiduciaries and other efforts deemed to be unrelated to participants’ best interests, such as the promotion of environmental, social or governmental (ESG) objectives. While prudence remains a concern, the worst violations of the duty of prudence also violate ERISA’s requirement that fiduciaries act solely in the interest of participants and beneficiaries (duty of loyalty). With respect to the duty of prudence, EBSA’s emphasis will be on process, not results.

EBSA will also focus on direct evidence of non-exempt, prohibited transactions that involve impermissible conflicts of interest.

EBSA will avoid regulating through enforcement whenever possible

To satisfy the fairness standard, EBSA will not regulate through enforcement or use enforcement to drive policy. Instead, EBSA will use notice-and-comment rulemaking and sub-regulatory guidance.

Unless the EBSA Director of Enforcement or the Assistant Secretary (or his delegate) provides advanced written approval to the contrary, EBSA enforcement will have a close nexus to the plain language of ERISA’s text, clearly established guidance in final DOL regulations, prominently published sub-regulatory guidance or clearly established case law.

If there are exigent or novel circumstances necessary to protect participants and beneficiaries from significant harm, including cases applying novel legal theories, actions by field staff must be first vetted with EBSA senior officials.

EBSA’s leadership will review all proposed significant enforcement activities

The Deputy Assistant Secretary for Program Operations, the Director of Enforcement and each Regional Director will be required to inform the Assistant Secretary of significant enforcement activity, including proposed settlements and voluntary corrective action.

The FAB describes significant issues as including (but not limited to):

• Novel legal theories or novel areas of enforcement
• Issues that are, or reasonably likely to be, the subject of circuit court splits
• Issues that will be resolved by adopting a position that deviates from a prior EBSA position
• Any other issues that the reporting staff believe may be of interest or importance to the Assistant Secretary
  
  

EBSA’s enforcement will be responsible and timely

EBSA believes that, in the past, too many investigations were open-ended and continued too long. Consequently, EBSA is committing, absent exceptional circumstances, to complete investigations within reasonable time frames and to conduct enforcement activities properly and respectfully.

The FAB sets an 18-month goal for less complicated issues and a 30-month goal for more complex cases, unless there are exigent circumstances. To ensure these limits are applied, the Director of Enforcement (or a designee) will conduct quarterly reviews of civil investigations that last longer than these target time periods. The results of these reviews will be reported quarterly to the Deputy Assistant Secretary for Program Operations and the Assistant Secretary.

Additionally, EBSA staff are directed to take any available opportunities to provide timely compliance assistance to conscientious plan sponsors and service providers under ERISA’s jurisdiction.

Another directive for EBSA staff addresses behavior

The memorandum concludes with this final directive for EBSA staff:

EBSA investigators and professionals will not do anything that compromises the Department’s independence, integrity and credibility with the regulated or participant communities. This includes eliminating any appearance that EBSA enforcement activities and priorities are being coordinated with plaintiff lawyers pursuing private actions.

The significance of FAB 2026-01

The FAB has no legal standing; it serves as internal enforcement instructions. However, it makes clear the Assistant Secretary’s (and the DOL’s) priorities.

The switch from focusing on the duty of prudence to focusing on the duty of loyalty is consistent with the administration’s concern about ESG being a factor in investment decisions.

The emphasis on not making law by litigation and reducing participant litigation that results only in big payouts for plaintiff class-action lawyers is something the Assistant Secretary wrote about even before being appointed to lead EBSA.

Criticism of the length and cost of DOL investigations is a long-term complaint of plan administrators.