Federal agencies enforcing ERISA are emphasizing compliance assistance this year. The Department of Labor (DOL) and the Pension Benefit Guaranty Corporation (PBGC) have restarted opinion letter programs to clarify ERISA’s application in specific situations. This blog reviews recent informal guidance on enforcement priorities, such as the fiduciary duty of loyalty, and proxy advisor actions that qualify as investment advice under ERISA’s five-part test.
DOL & PBGC relaunch opinion letters
Last summer, DOL relaunched opinion letters—official interpretations of how laws apply in specific benefit plan scenarios—to help the public understand their rights and responsibilities. Anyone, including workers, employers, employment associations, lawyers, human resource professionals, unions and industry leaders, can request letters when regulations are unclear. “Launching this program is part of our broader effort to empower the public with the information they need to understand and comply with the laws the department enforces,” U.S. Acting Secretary of Labor Keith Sonderling said in a news release.
Federal agencies have discretionary authority to render opinion letters in response to requests. If the Employee Benefit Security Administration (EBSA) responds to an inquiry, the two possible formats are advisory opinions which apply the law to specific facts, or information letters which highlight well-established principles or interpretations.
“The Opinion Letter Program is a crucial tool in the Corporation’s ongoing efforts to provide the public with clear and consistent guidance. We want the pension community to view PBGC as a resource that helps them provide greater retirement security for the nation’s workers, retirees, and their families,” PBGC Director Janet Dhillon said in a news release.
Tips for requesting an opinion letter
DOL and PBGC offer checklists for what a request should include in order to help requesters present their question in a way that highlights for agency staff why their question should be answered.
- Reference laws, regulations or other guidance you think is relevant
- Accurately and completely describe all the facts
- Confirm that the request is not related to a matter pending with a federal agency. The agencies do not issue letters for use in any investigation or litigation matter that existed before your request.
- Avoid any personally identifiable information, such as participant name or address, or confidential business information that you do not want publicly disclosed.
- Your phone number or email address
Opinions apply only to the parties and situations described in the request. Other parties or the public can view the opinion letters to get an idea of DOL or PBGC’s interpretation but can’t rely on it.
EBSA enforcement prioritizes egregious & significant harm
On April 14, 2026, DOL announced Field Assistance Bulletin (FAB) 2026-01, a memo for EBSA staff that clarifies its enforcement priorities and guiding principles. The bulletin establishes that its enforcement of ERISA is designed to be fair, transparent, consistent and focused.
The priority is focusing enforcement on the most egregious conduct and significant harm to the plan participants and beneficiaries. Investigators are instructed to target those acting in bad faith to improperly administer plan benefits, misappropriate assets set aside for the exclusive benefit of participants and beneficiaries. Environmental, social, or governance (ESG) objectives are called out as disloyal conduct that is unrelated to participants’ best interests in the bulletin.
Fiduciary duties of loyalty and prudence
Breaches that are most harmful will have loyalty and prudence breaches, according to the bulletin. Investigators will focus on enforcement of loyalty breaches, or direct evidence of non-exempt prohibited transactions that involve impermissible conflicts of interest. For prudence-only breaches, investigators “must avoid cases that unfairly second-guess process-based fiduciary judgments,” FAB 2026-01 reads.
Difference between rulemaking and enforcement
The enforcement principles promote prior notice, and clarity to the regulated community. Novel legal theories or interpretations of ERISA should be responded to with notice-and-comment rulemaking and sub-regulatory guidance. Enforcement activity should align with the plain language of ERISA with an emphasis on clearly established guidance in final DOL regulations or prominently published sub-regulatory guidance or clearly established case law, the bulletin says. If novel circumstances are causing participants and beneficiaries significant harm, any investigation must first be vetted and approved by senior agency officials.
Guidance Declares Proxy Advisors may be Investment Advice Fiduciaries
Proxy voting refers to the practice of casting votes for shareholders of a corporation who cannot attend meetings to exercise voting rights connected to their shares. Proxy advisory firms provide recommendations to shareholders on how to vote on matters raised during shareholder meetings. Proxy advisory firms may cast votes on behalf of clients.
An executive order directed DOL to examine whether proxy advisors’ actions meet the test to make them investment advice fiduciaries and to look at other entities who manage, or advise those that manage the rights connected to shares of stock held by ERISA-covered plans. In response, on April 15, 2026, DOL announced Technical Release 2026-01, titled “Application of ERISA Fiduciary Requirements, and Preemption Provisions to Proxy Advisory Services.” According to DOL, proxy advisory firms that have discretion over voting policies, vote casting, or exercise shareholder rights for ERISA-covered plan shares are considered functional fiduciaries under ERISA.
Voting and other shareholder rights held by ERISA plans are considered plan assets and must be managed according to ERISA’s duties of prudence and loyalty for the exclusive purpose of maximizing risk-adjusted return on investment, the technical release says.
In Closing
DOL’s guidance highlights three key aspects of ERISA fiduciary responsibilities. First, opinion letters may be a useful compliance tool for learning how a law applies to a specific plan situation. Second, enforcing the duty of loyalty is paramount, and bad faith actors causing harm will be targeted. Finally, proxy advisory actions, especially when firms retain control over voting policies, are subject to fiduciary duty under ERISA. This ensures that any advice or actions regarding shareholder rights are held to the highest standards of prudence and loyalty, safeguarding the integrity of plan assets for beneficiaries.
Developed by International Foundation Information Center staff. This does not constitute legal advice. Please consult your plan professionals for legal advice.
