Publication
U.S. Department of Labor Signals Shift in ERISA Enforcement Priorities in FAB 2026-01
On April 14, 2026, the U.S. Department of Labor (the “DOL”) issued Field Assistance Bulletin 2026-01 (“FAB 2026-01”), outlining updated enforcement priorities for the Employee Benefits Security Administration (“EBSA”). The guidance signals a more focused and process-oriented enforcement approach, emphasizing core fiduciary duties, limits on “regulation through enforcement,” and increased scrutiny of certain plan practices.
Although FAB 2026-01 is framed as internal agency guidance and does not create enforceable rights, it provides important insight into EBSA’s current enforcement posture and areas of focus.
The DOL’s Four Key Enforcement Priorities
1. Targeting Egregious Conduct and Significant Harm
- EBSA will prioritize enforcement efforts on cases involving significant harm to the employee benefits system, particularly those involving bad faith conduct.
- Enforcement will focus on individuals and entities who, acting in bad faith, improperly administer plan benefits or misappropriate plan assets, including those who act to enrich themselves or advance objectives unrelated to participants’ best interests, including the promotion of environmental, social or governance (“ESG”) objectives.
- The agency will devote substantial resources to investigating loyalty breaches and non-exempt prohibited transactions.
- EBSA indicated it will generally avoid second-guessing fiduciary decisions where a prudent process is followed, reinforcing that the Employee Retirement Income Security Act of 1974 (“ERISA”) is a “law of process, not results.”
- The agency will continue to enforce health plan requirements under Part 7 of ERISA, including disclosure, claims processing, and adjudication rules.
2. Rejecting “Regulation Through Enforcement”
- EBSA will not use enforcement actions to establish new regulatory standards.
- Enforcement activity must be grounded in:
- ERISA’s statutory text,
- final DOL regulations or prominently published sub-regulatory guidance, or
- well-established case law.
- Enforcement initiatives will require a close nexus to these authorities unless EBSA senior leadership provides written approval to the contrary.
- Pending and proposed employee stock ownership plan (“ESOP”) valuation investigations must be evaluated under the guiding principle of fairness until the DOL complies with the Congressional directive to provide standards and procedures to establish good faith fair market value for company shares to be acquired by an ESOP.
3. Centralized Review of Significant Enforcement Actions
- The DOL is increasing oversight of major enforcement matters to promote consistency across regions.
- The Deputy Assistant Secretary for Program Operations, the Director of Enforcement, and each Regional Director must inform EBSA’s Assistant Secretary (or his delegate) of significant enforcement activity, including proposed settlements and voluntary corrective actions. They are required to do so at least two weeks prior to any pertinent deadline or proposed action whenever possible.
- “Significant” matters include, but are not limited to, novel legal theories or areas of enforcement, issues that are likely to be the subject of circuit court splits, issues that require departures from prior EBSA positions, or issues of heightened policy interest.
4. More Timely and Responsive Investigations
- EBSA has committed to improving the efficiency and transparency of its investigations.
- Routine investigations (e.g., delinquent contributions, disclosure violations, bonding issues) are expected to be completed within 18 months, absent exigent circumstances.
- More complex investigations should generally be completed within 30 months, unless there are exigent circumstances.
- EBSA investigators are encouraged to provide timely compliance assistance to conscientious plan sponsors and service providers.
- Investigations exceeding these timelines will be subject to quarterly review by senior leadership.
The DOL’s Focus on Independence, Integrity, and Credibility
FAB 2026-01 underscores the DOL’s intent to maintain independence in its enforcement activities. It prohibits EBSA investigators and professionals from doing anything that compromises the DOL’s independence, integrity, or credibility with those who are subject to the DOL’s jurisdiction, including avoiding the appearance of coordination with private plaintiffs’ attorneys. The DOL’s Inspector General is currently investigating the agency’s past use of common interest agreements between EBSA and private plaintiff law firms, and further guidance may follow based on the findings of that investigation.
Key Takeaways for Plan Sponsors and Fiduciaries
- Heightened Scrutiny of ESG-Related Decisions. FAB 2026-01 reflects the DOL’s position that fiduciary decisions should be firmly grounded in participants’ financial interests. ESG-related considerations may raise loyalty concerns if they are not clearly tied to those interests. Plan fiduciaries should review investment policies and proxy voting practices to assess potential risk.
- Emphasis on Process and Documentation. EBSA’s stated focus on process reinforces the importance of well-documented fiduciary decision making. Plan sponsors and fiduciaries should ensure that governance practices clearly demonstrate procedural prudence and compliance with ERISA standards.
- Developments in ESOP Valuations. EBSA signaled that it will take into account ongoing efforts to establish acceptable ESOP valuation standards before advancing certain investigations. ESOP sponsors should monitor developments in this area closely.
- Compliance Assistance for Good-Faith Actors. The guidance suggests a more balanced approach to enforcement, with an emphasis on assisting conscientious plan sponsors in achieving compliance rather than imposing penalties for inadvertent errors.
What Plan Sponsors and Fiduciaries Should Consider Doing Now
- Review and strengthen fiduciary governance and documentation practices.
- Reassess ESG-related investment and proxy voting policies.
- Monitor developments in ESOP valuation guidance.
- Prepare for more structured (and potentially faster) EBSA investigations.
- Engage counsel early when responding to EBSA inquiries or investigations.
While FAB 2026-01 does not create substantive or procedural rights for plan sponsors or fiduciaries, it provides a clear roadmap of EBSA’s current enforcement philosophy. Plan sponsors and fiduciaries should take note of these priorities and consider aligning their compliance strategies accordingly.
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