Category Archives: DOL

Things I Worry About (26): Pooled Employer Plans and DOL RFI (7)


DOL, fiduciary
, , , , , , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that includes questions designed to assist the DOL in developing future guidance about PEPs.
  • Some of those questions suggest a possible fiduciary safe harbor for small employers who adopt PEPs.
  • This article continues a discussion of the questions asked by the DOL and my comments on those questions and issues. In particular, this article covers some of the “safe harbor” questions raised by the DOL.
  • While the DOL questions are for future guidance, advisors and providers should be paying attention because, among other reasons, some current practices may be disfavored by the DOL.

This series of articles examines the DOL’s July 29, 2025, release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED).

The first two articles in this series,  Things I Worry About (20) and Things I Worry About (21), discussed some of the DOL’s findings when it reviewed the 2023 Forms 5500 filed by PEPs.

The third, fourth and fifth articles, Things I Worry About (22), Things I Worry About (23), and Things I Worry About (24), reviewed issues identified by the DOL for employers who may be deciding whether to join a PEP.

Continue reading Things I Worry About (26): Pooled Employer Plans and DOL RFI (7) →

Share

Things I Worry About (25): Pooled Employer Plans and DOL RFI (6)


DOL, fiduciary
, , , , , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that includes questions designed to assist the DOL in developing future guidance about PEPs.
  • Some of those questions suggest a possible fiduciary safe harbor for small employers who adopt PEPs.
  • This article begins a discussion of the questions asked by the DOL and my comments on those questions and issues. In particular, this article covers some of the “safe harbor” inquiries. The remaining DOL safe harbor questions will be discussed in my next article.
  • While the DOL inquiries are for future guidance, advisors and providers should be paying attention because, among other reasons, some current practices appear to be disfavored by the DOL.

This series of articles examines the DOL’s July 29, 2025, release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED).

The first two articles in this series,  Things I Worry About (20) and Things I Worry About (21), discussed some of the DOL’s findings when it reviewed the 2023 Forms 5500 filed by PEPs.

The third, fourth and fifth articles, Things I Worry About (22), Things I Worry About (23), and Things I Worry About 24, reviewed issues identified by the DOL for deciding whether to join a PEP.

This article begins a series about the part of the guidance that was an RFI, where the DOL is soliciting information that would be helpful for future guidance. I quote and then discuss the questions that are the most interesting and relevant to employers and service providers.

Continue reading Things I Worry About (25): Pooled Employer Plans and DOL RFI (6) →

Share

Things I Worry About (24): Pooled Employer Plans and DOL RFI (5)


DOL
, , , , , , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and that suggests a possible fiduciary safe harbor for small employers who adopt PEPs.
  • This article continues a discussion of the questions that the DOL says that employers should ask when considering adopting a PEP for their employees. The questions covered in this article are 7 through 9, which deal with fees and costs, investments and scope of fiduciary responsibility.
  • Both advisors and employers should consider the DOL Tips when considering PEPs and, if a PEP would be a good choice, which one is a good fit for the employer.

This series of articles examines the DOL’s July 29, 2025, release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED).

The first two articles in this series,  Things I Worry About (20) and Things I Worry About (21), discussed some of the DOL’s findings when it reviewed the 2023 Forms 5500 filed by PEPs. The third and fourth articles, Things I Worry About (22) and Things I Worry About (23), started the review of issues identified by the DOL for deciding whether to join a PEP.

This is the third article about the questions that the DOL suggested employers ask when adopting PEPs. That section—entitled “Fiduciary Tips for Small Employers Selecting a PEP”—posed nine questions that employers should ask. This article covers the remaining DOL questions and comments, as well as my comments.

Continue reading Things I Worry About (24): Pooled Employer Plans and DOL RFI (5) →

Share

Things I Worry About (23): Pooled Employer Plans and DOL RFI (4)


DOL
, , , , , , , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and that suggests a possible fiduciary safe harbor for small employers who adopt PEPs.
  • This article continues a discussion of the questions that the DOL says that employers should ask when considering adopting a PEP for their employees. The questions covered in this article are 4 through 6, which deal with fees and costs, investments and scope of fiduciary responsibility.
  • Both advisors and employers should consider the DOL Tips when deciding whether to join a PEP and, if so, which one.

This series of articles examines the DOL’s July 29, 2025, release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED).

The first two articles in this series,  Things I Worry About (20) and Things I Worry About (21), discussed some of the DOL’s findings when it reviewed the 2023 Forms 5500 filed by PEPs. The third article, Things I Worry About (22), started the review of issues identified by the DOL for deciding whether to join a PEP.

This is the second in a series of articles about the questions that the DOL suggested employers ask when adopting PEPs. That section—entitled “Fiduciary Tips for Small Employers Selecting a PEP”—posed nine questions that employers should ask. My last article, Things I Worry About (22), covered the first three questions. This article and my next one cover the remaining DOL questions and comments, as well as my comments.

Continue reading Things I Worry About (23): Pooled Employer Plans and DOL RFI (4) →

Share

Things I Worry About (22): Pooled Employer Plans and DOL RFI (3)


DOL
, , , , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and a possible fiduciary safe harbor for small employers who adopt PEPs.
  • This article begins a discussion of the questions that the DOL says that employers should ask when considering adopting a PEP for their employees.

This series of articles examines the DOL’s July 29, 2025 release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED).

The first two articles in this series,  Things I Worry About (20) and Things I Worry About (21), discussed some of the DOL’s findings when it reviewed the 2023 Forms 5500 filed by PEPs. This article moves on to the questions that the DOL suggested employers ask when adopting PEPs. That section—entitled “Fiduciary Tips for Small Employers Selecting a PEP”—posed 9 questions that employers should ask. This article and my next two provide the DOL’s questions and comments, as well as my comments.

Continue reading Things I Worry About (22): Pooled Employer Plans and DOL RFI (3) →

Share

Things I Worry About (21): Pooled Employer Plans and DOL RFI (2)


DOL, fiduciary
, , , , , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and a possible fiduciary safe harbor for small employers who adopt PEPs.
  • In addition, the preamble to the guidance includes some interesting information about the development of PEPs.
  • That information includes data about the successes of PEPs and also some considerations for evaluating PEPs.

This series of articles examines the DOL’s July 29, 2025 release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED).

Continue reading Things I Worry About (21): Pooled Employer Plans and DOL RFI (2) →

Share

Things I Worry About (20): Pooled Employer Plans and DOL RFI (1)


DOL
, , , , , ,

Key Takeaways

  • The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and a possible fiduciary safe harbor for small employers who adopt PEPs.
  • In addition, the preamble to the guidance includes some interesting information about the development of PEPs.

This series of articles examines the DOL’s July 29, 2025 release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting PEPs, and discusses a possible fiduciary safe harbor for adopting PEPs. 2025-14281.pdf (SECURED)

Continue reading Things I Worry About (20): Pooled Employer Plans and DOL RFI (1) →

Share

Things I Worry About (17): Executive Orders, Private Funds, and Fiduciary Standards (3)


DOL, fiduciary
, , , , , , , , ,

Key Takeaways

  • The Trump administration has issued an Executive Order about facilitating 401(k) investments in “alternative assets.”
  • The Order directs the Secretary of Labor to examine current guidance and decide if it is appropriate for that purpose.
  • The Order also directs the Secretary of Labor to issue guidance to clarify fiduciary responsibilities for 401(k) investing in alternative assets and to consider providing fiduciary guidance.

My last two articles, Things I Worry About (15) and Things I Worry About (16), reviewed  the President’s August 7 Executive Order (EO) entitled Democratizing Access to Alternative Assets for 401(k) Investors (Democratizing Access to Alternative Assets for 401(K) Investors – The White House) and some of the misunderstandings about what the EO says.

This article focuses on parts of the EO that I believe to be particularly significant.

Continue reading Things I Worry About (17): Executive Orders, Private Funds, and Fiduciary Standards (3) →

Share

Things I Worry About (11): DOL Cryptocurrency Guidance Withdrawn


DOL, investment adviser
, , , , ,

Key Takeaways

  • The Department of Labor’s Employee Benefits Security Administration (EBSA) issued Compliance Assistance Release (CAR) 2022-01 that caused concerns among plan sponsors and fiduciaries about the use of cryptocurrencies in participant directed plans.
  • On May 28 of this year, the DOL’s EBSA rescinded that CAR. That should have the effect of reducing, but not eliminating, the concerns.
  • This article discusses the two pieces of guidance and the possible outcomes.

The 2022 CAR (2022-01.pdf) had a chilling effect on adding cryptocurrency investments into participant directed plans. The statements in the CAR that raised the most concern were:

  • The Department cautions plan fiduciaries to exercise extreme care before they consider adding a cryptocurrency option to a 401(k) plan’s investment menu for plan participants.
  • At this early stage in the history of cryptocurrencies, the Department has serious concerns about the prudence of a fiduciary’s decision to expose a 401(k) plan’s participants to direct investments in cryptocurrencies, or other products whose value is tied to cryptocurrencies. These investments present significant risks and challenges to participants’ retirement accounts, including significant risks of fraud, theft, and loss, …
  • Based on these and other concerns, EBSA expects to conduct an investigative program aimed at plans that offer participant investments in cryptocurrencies and related products, and to take appropriate action to protect the interests of plan participants and beneficiaries with respect to these investments. The plan fiduciaries responsible for overseeing such investment options or allowing such investments through brokerage windows should expect to be questioned about how they can square their actions with their duties of prudence and loyalty in light of the risks described above.

Continue reading Things I Worry About (11): DOL Cryptocurrency Guidance Withdrawn →

Share

Things I Worry About (8): DOL Investigations and Unsuspecting Plan Sponsors (2)


best practices, DOL, fiduciary
, , , ,

Key Takeaways

  • The Employee Benefit Security Administration (EBSA) of the US Department of Labor (DOL) recently released its Fact Sheet: EBSA Restores Nearly $1.4 Billion to Employee Benefit Plans, Participants, and Beneficiaries: ebsa-monetary-recoveries.pdf
  • One of the targets of their investigation is “missing participants”. The DOL refers to that program as the “Terminated Vested Participant Benefits Payments”. Impressively, the EBSA recovered $429,200,000 for participants under that program in the 2023-2024 fiscal year.
  • Plan sponsors/fiduciaries and their advisors would be well-advised to determine whether they have “missing participants” and, if so, take steps outlined by the DOL to address the issue.

As explained in my last post, Things I Worry About (7), the DOL’s EBSA has a number of programs that can restore benefits to plans and participants. Those include:

  • Civil investigations.
  • Criminal investigations.
  • Informal complaint resolutions.
  • Correction programs.

The issue of “missing participants” comes up in civil investigations. In those investigations the DOL examines whether a plan has former employees who left their accounts in the plan and whether the plan continues to provide the legally required disclosures and to ensure that the participants are aware of their benefits. I put “missing participants” in quotes because the definition I broader than it appears. There isn’t a legal definition, but the practical definition is that it is a former employee who left the employment of a plan sponsor, but did not take a distribution of his or her benefits. If plan communications (e.g., emails, mail, disclosures) are sent to a former employee who has benefits in the plan and it appears that the communications were received, the former employee is not “missing.” But, if the emails and mailings are kicked back as undeliverable, the participant is missing.

Continue reading Things I Worry About (8): DOL Investigations and Unsuspecting Plan Sponsors (2) →

Share