Getting Better: The DOL’s Enforcement Shift

Although its impact won’t quite rival Beatlemania, the guidance recently outlined in Field Assistance Bulletin (FAB) No. 2026-01, issued April 14, 2026, to the Employee Benefits Security Administration (EBSA) Office of Enforcement by U.S. Department of Labor (DOL) Assistant Secretary Daniel Aronowitz, has created a frenzy by providing insight into changes in ERISA enforcement. FAB 2026-01 focuses on four core DOL goals to safeguard retirement plans, health plans, and other workplace-related benefits. The FAB attempts to refocus the DOL’s enforcement program on its core competencies: investigation, the promulgation of clear sub-regulatory guidance, and compliance assistance for plan sponsors.

These “FAB Four” include:

1. Enforcement through criminal and civil cases where conduct results in egregious harm;
2. Issuance of written guidance to clarify its positions rather than regulation by enforcement;
3. A high-level review of novel theories and high-impact issues to ensure uniformity in regulatory action across regional offices; and
4. A focus on timely enforcement.

A Focus That Prioritizes Harm

The DOL will prioritize investigations involving egregious conduct that significantly harms plans and participants, pursuing criminal charges when appropriate. The DOL specifically lists the promotion of environmental, social, and governance objectives as an example of conduct that is unrelated to participants’ best interests and therefore presumably an enforcement target. With its resources constrained and the number of investigators dwindling, the DOL will prioritize situations involving the greatest perceived harm, i.e., the largest number of participants or the most plan assets. The FAB further stresses the DOL’s role in offering compliance assistance to good faith actors. In the voluntary system of benefits, this approach appears to favor supporting rather than penalizing those trying to provide benefits correctly.

Elimination of Regulation by Enforcement

Additionally, in response to criticism that the DOL “regulates through enforcement,” the FAB states that future enforcement should be grounded in ERISA’s text, DOL regulations, or published sub-regulatory guidance. Anything outside those boundaries will need to be approved by senior leadership. This aligns with public statements by Aronowitz that novel theories should not first be made known to the public during enforcement actions. This objective should make compliance easier.

The DOL has already taken steps to facilitate getting clear guidance to stakeholders. In 2025, it announced that its Advisory Opinion Program would be modernized and streamlined. This is a welcome change, as in recent years there have been very few advisory opinions issued. From 2015 to 2024, the DOL issued only 11 advisory opinions. Compare that with the 74 issued from 2005 to 2014, and the trend is clear. One could argue that fewer advisory opinions mean less insight and more risk for plans, plan service providers, and employers. It also is notable that in 2025, the DOL issued four advisory opinions, which is the most the DOL has put out in several years.

Review at Higher Levels

The FAB also outlines intentions to centralize the oversight of significant enforcement actions. This includes broader review by leadership of settlement agreements, corrective actions, and novel legal theories, including areas of import to Aronowitz such as ESOP valuations. This should align the agency’s priorities and promote consistency for EBSA investigators, hopefully resulting in more consistency and fairness among investigations.

Efficiency in Enforcement

The FAB attempts to make DOL/EBSA investigations more efficient and transparent by emphasizing timelines. Investigations that do not uncover complicated matters should be resolved in 18 months, and investigations involving more complex matters should be completed in 30 months. Deadlines can be extended where circumstances make it appropriate but will require proof that justifies an extension, and cases extending beyond the time limits will be reviewed quarterly by senior leaders. Currently, it is not uncommon for DOL investigations to continue for years without resolution. Senior-level review implies that there will be internal pressure on EBSA investigators to complete investigations in a timely fashion.

Separately, the FAB states that the DOL is committed to “independence, integrity and credibility” in its enforcement actions, which includes “eliminating any appearance that EBSA enforcement activities and priorities are being coordinated with plaintiff lawyers pursuing private actions.” A former DOL practice of sharing investigative information with plaintiffs’ lawyers is currently under investigation by the DOL’s inspector general.

Notably Missing

It should be noted that investment prudence is not included as an enforcement priority. In fact, the DOL states that although breaches of the duty of prudence can harm participants, “given that ERISA is a law of process and not results, EBSA must avoid cases that unfairly second-guess process-based fiduciary judgments.” Given that the DOL recently released a proposed regulation that would provide a safe harbor for demonstrating prudence in selecting investment options for participant-directed plans, it may be that the FAB itself, together with the regulation, is the first example of the DOL backing away from regulation by enforcement in favor of advance guidance through notice-and-comment rulemaking.  

Perhaps the loudest statement from this FAB is the omission of any reference to the “fiduciary rule.” The DOL appears to be pivoting away from the madness created by its focus on defining ERISA 3(21) fiduciaries and instead returning to its primary purposes: enforcing well-defined laws and regulations, providing helpful sub-regulatory guidance, and providing compliance assistance for plan sponsors.

Considerations

Sponsors and service providers who have not recently examined their internal processes may want to do so. The FAB foretells focused investigations centered on obvious fiduciary violations, like self-dealing. And while it speaks of compliance assistance for plan sponsors acting in good faith, those who use plan assets to enrich themselves will still face consequences.