On April 14, 2026, the Department of Labor (“DOL”) issued Field Assistance Bulletin 2026-01 (“FAB 2026-01” or “FAB”). FAB 2026-01 outlines the Employee Benefits Security Administration’s (“EBSA”) enforcement priorities and guiding principles for the agency’s enforcement. In his April 16th hearing before the Subcommittee on Health, Employment, Labor, and Pensions of the U.S. House of Representatives’ Committee on Education and Workforce, Assistant Secretary Aronowitz stated that the agency is addressing regulatory overreach in employee benefits, providing regulatory clarity for plan sponsors, and ending regulation by government enforcement. Over the past few years, plan sponsors, services providers, and trade associations have been increasingly vocal about issues with EBSA’s enforcement. FAB 2026-1 appears designed to address many of the key concerns, including the length of time of investigations and attempts to regulate through enforcement. This represents a fundamental shift in DOL’s relationship with the regulated community, though the ultimate impact will depend, in large part, on how it is implemented by the DOL regional offices.
Background
Over the past decade, plan sponsors, service providers, and other fiduciaries have repeatedly raised concerns about EBSA’s enforcement tactics. The critics typically acknowledge the important role that EBSA plays in safeguarding participants. However, they argue that investigations are often unreasonably burdensome and can take years to resolve. They also often take issue with the fact that EBSA has used enforcement as a de facto way of regulating conduct for which there are very few formalized rules, like ESOP valuation and missing participant searches.
EBSA Assistant Secretary Aronowitz and others in DOL’s political leadership have publicly committed to reforming ERISA enforcement and making the system more efficient and effective. For example, Assistant Secretary Aronowitz stated in a recent House hearing that EBSA intends to address regulatory overreach, provide regulatory clarity for plan sponsors, and end regulation by government enforcement. FAB 2026-01, together with changes to EBSA’s national enforcement priorities [LINK ALERT], are the beginning of the foundation to accomplishing that goal by reforming the way EBSA approaches and manages investigations.
FAB 2026-01
FAB 2026-1 states that the continued well-being for ERISA plans is crucial to both employers and employees covered under those plans. To ensure the well-being of those plans, and more specifically to ensure that the agency’s enforcement is fair, even-handed, responsive and focused, FAB 2026-01 outlines four EBSA enforcement priorities and guiding principles:
- Focusing enforcement on the most egregious conduct and significant harm.
FAB 2026-01 provides a reframing for how the agency will prioritize its enforcement activity. The FAB states that the agency will prioritize criminal cases to address the most significant harm to the employee benefits system. The FAB also lays out a number of key principles for how the agency will now prioritize civil enforcement cases. While the FAB is not specific to retirement or health enforcement or investigations involving fiduciary breaches, the FAB states that the agency will prioritize investigations where the facts support a breach of the duty of loyalty, as opposed to investigations that focus solely on breaches of prudence. As support for this principle, the FAB indicates that the costliest prudence breaches are generally accompanied with loyalty breaches. The FAB states that the agency’s highest priority will involve targeting individuals and entities who, acting in bad faith, improperly administer plan benefits, including conduct designed to enrich themselves. Of note, the FAB states that where enforcement is premised solely on a prudence breach, the agency must avoid cases that unfairly second-guess process-based fiduciary judgments. This principle indicates that the agency will no longer target issues involving minor foot faults, or plan practices that are on balance reasonable, where the plan fiduciary followed a prudent process to reach such decision. - EBSA will not regulate through enforcement whenever possible.
In outlining this second principle, the FAB highlights that fairness is to be a key guiding principle for EBSA enforcement. Accordingly, the FAB charges the agency with providing clear and advance notice to the regulated public about interpretations of ERISA, rather than first articulating novel legal theories or interpretations of ERISA in enforcement actions. The FAB includes an administrative standard for enforcement actions. Specifically, the FAB states that the factual predicate for all enforcement actions must have a close nexus to the plain ERISA statutory text, clearly established regulations, prominently published sub-regulatory guidance, or clearly established case law. The FAB provides for exceptions, including exceptions for exigent or novel circumstances, for example, a case involving significant participant harm. However, such exceptions require approval by EBSA senior leadership (including approval by the Assistant Secretary or his delegate). This principle should reduce the number of enforcement actions that target plan or issuer practices that are not specifically prohibited by regulations or guidance, particularly where there isn’t significant attendant participant harm. - All proposed significant enforcement activities must be reviewed by EBSA’s leadership.
To ensure that EBSA is meeting these enforcement priorities and guidance principals, the FAB states that EBSA leadership will now review all significant enforcement activity. The FAB defines significant enforcement activity to include proposed settlements and voluntary corrective actions. It also highlights several significant issues that would trigger the need for EBSA leadership review. These include novel legal theories or novel areas of enforcement, issues that are or are likely to be the subject of circuit court splits, issues that will be resolved by adopting a position that deviates from a prior agency position, and any other issue of importance as determined by agency leadership. Most of the agency’s enforcement occurs through voluntary correction, so including this as significant activity requiring review means that many enforcement actions will now be subject to senior leadership review. This principle should help ensure, at a minimum, that the final disposition of an enforcement action is consistent with the policy direction of EBSA leadership. - EBSA’s enforcement must be responsive and timely.
To address concerns regarding the open-ended nature of a number of EBSA investigations, the FAB establishes general timeframes for investigations. The FAB provides that routine investigations should be completed in 18 months and complex investigations should be completed within 30 months. Both timeframes allow for longer timeframes when there are exigent circumstances. While the new timeliness standards should reduce the long periods of inaction that occur over the course of a multi-year investigation, the regulated community should also expect shorter timeframes for document production and responses to the agency.
Key Takeaway
The principles discussed in FAB 2026-01 mark a significant shift in EBSA enforcement and should be a welcome change for many plan sponsors and service providers. It will likely take time for the regional offices to implement the new procedures, and there may be little effect on existing investigations, especially for investigations that are nearing conclusion. However, the new guidance should help alleviate common enforcement concerns over the long term and may reduce the overall cost and burden of investigations.
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