Enforcement actions at the Department of Labor have remained steady compared to the previous administration in the nearly two years since President Donald Trump took office, while calls for additional guidance persist, according to attorneys who specialize in ERISA-related matters.
Although anecdotal — the DOL will release Employee Benefits Security Administration enforcement statistics for fiscal year 2018 early next year — Nancy Ross, partner and co-chairwoman of the ERISA litigation practice at Mayer Brown LLP, Chicago, said enforcement actions such as opening investigations and filing lawsuits against company retirement plans have not decreased as much as many expected in the past two years.
"I was hoping we would see a difference in how aggressive the department was," Ms. Ross said. "I have not recognized as much of a decrease in EBSA's involvement in monitoring benefit plan administration or operation as I would have hoped with this new administration with the view of 'less government is better.'"
Thomas E. Clark Jr., a St. Louis-based partner with The Wagner Law Group, said he was expecting the DOL under Secretary Alexander Acosta to adopt a similar approach to that of former Secretary Elaine Chao during President George W. Bush's administration. Mr. Clark described Ms. Chao's approach as a "greater push by the DOL to fix problems without playing 'gotcha'" with plan sponsors.
"I think it would be fair to say that with a Republican administration the expectation is you go back to more of an Elaine Chao DOL than the Tom Perez DOL," Mr. Clark said, referring to the former Labor secretary under President Barack Obama. "I think under Secretary Acosta you generally see the (Perez) programs have continued."
Under the current administration, the DOL has filed two advisory opinions, including one last week. In the proceeding eight years under Mr. Obama, 28 advisory opinions were issued — but just four in the first two years — while under President George W. Bush, the DOL filed 102 advisory opinions in eight years, including 23 the first two years.
Michael P. Kreps, principal at Groom Law Group, said the DOL under both the Obama and Trump administrations has focused more on broad regulations, like the fiduciary rule in the last administration and expanding multiple employer plans in this administration, than subregulatory guidance, like advisory opinions.
"Historically, the retirement industry has relied on subregulatory guidance to help get a sense of how the department views various issues," Mr. Kreps said of the decline in advisory opinions. "It's seen by many as a way for the department to do softer touch regulation; by putting opinions out there they can facilitate practices they like and put the kibosh on practices they don't like or are concerned about without having to necessarily rely on a back-end enforcement strategy."
Mr. Kreps said it's likely the DOL will issue more advisory opinions in the next two years than the past two years because it will have had "more time to think about the issues and reach conclusions." Industry stakeholders said there could be further clarity on issues related to employee stock ownership plans and missing participants.