Biden nominates Lisa Gomez as head of EBSA

It's been more than 14 months since the Department of Labor's Employee Benefits Security Administration has had a leader in a permanent role, but that's likely to soon change.

President Joe Biden on July 27 nominated Lisa M. Gomez, a New York-based partner with the law firm Cohen, Weiss and Simon LLP and the chairwoman of its management committee, as assistant secretary for EBSA.

Ms. Gomez has worked at the law firm since 1994 and has an extensive employee benefits background. Over her career she has represented various plans and plan sponsors in the multiemployer plan community, as well as other Taft-Hartley and single-employer plans in the private sector and a federal employee health benefit plan, according to a statement on Cohen, Weiss and Simon's website.

She also advises plans on plan design and administration, benefit claims and fiduciary issues, delinquency collection, participant communications, service provider agreements and qualified domestic relations orders and represents them in various types of litigation, according to her Cohen, Weiss and Simon biography.

"Lisa's background in ERISA will serve her well in the new position and will aid in advancing DOL rule-makings," said George Michael Gerstein, co-chairman of the fiduciary governance and environmental, social and governance groups at Stradley Ronon Stevens & Young LLP in Washington, in an email. "The DOL is prioritizing ESG and the investment-advice rule-makings at the moment, and I don't think Lisa's arrival — (should she be confirmed before the rules are proposed) — will alter those priorities."

John R. Harney, a Washington-based partner with O'Donoghue & O'Donoghue LLP, said in an email that Ms. Gomez is knowledgeable and well-versed in employee benefit law. "Her nomination has been welcomed by all constituencies within the employee benefit community," he added. "When she is confirmed, EBSA will have a solid leader at the helm."

Added David Levine, a Washington-based principal at Groom Law Group and co-chairman of the firm's plan sponsor practice, in an email: "Ms. Gomez's nomination highlights the Biden administration's focus on a vibrant EBSA regulatory process."

Preston Rutledge was the last person to hold the role on a permanent basis. He stepped down in May 2020 during the final year of the Trump administration. Since the Biden administration took office in January, Ali Khawar has been leading the EBSA as acting assistant secretary. If Ms. Gomez were to be confirmed, Mr. Khawar would retain his other position as principal deputy assistant secretary.

EBSA is working on guidance and rule-making initiatives on a host of issues, including lifetime income, ESG investing and fiduciary investment advice.

On lifetime income, the department has said a final rule will be issued before Sept. 18, when its interim final rule that was published in September 2020 on the subject takes effect. The department on July 26 published an FAQ in an attempt to clarify further details about its soon-to-be effective interim final rule that requires ERISA-governed defined contribution plans to incorporate an annual lifetime income illustration for participants. The department was directed to promulgate the rule under the Setting Every Community up for Retirement Enhancement Act, or SECURE Act, which Congress signed into law in late 2019.

Departments staffers are also working on a rule on ESG investing. In March, the department said it would not enforce two rules — one called "Financial Factors in Selecting Plan Investments," which stipulates that ERISA plan fiduciaries cannot invest in "non-pecuniary" vehicles that sacrifice investment returns or take on additional risk; and the other, "Fiduciary Duties Regarding Proxy Voting and Shareholder Rights," which outlines the process a fiduciary must undertake when making decisions on casting a proxy vote — promulgated under the Trump administration.

Mr. Khawar has said that the rules had a chilling effect on investment behavior because stakeholders were fearful of additional liability.

Moreover, the department is crafting a rule on investment advice that would amend the regulatory definition of the term fiduciary "to more appropriately define when persons who render investment advice for a fee to employee benefit plans and (individual retirement accounts) are fiduciaries" within the meaning of the Employee Retirement Income Security Act and the Internal Revenue Code, according to a department explanation.