At the Labor Department, the Employee Benefits Security Administration, which oversees ERISA retirement plans, is still without a clear leader.
Though President Donald Trump nominated Daniel Aronowitz to lead EBSA in February, the Senate has yet to schedule his confirmation hearing.
Former politically appointed EBSA officials in the Biden administration — Lisa Gomez, former assistant secretary of labor, and Ali Khawar, former principal deputy assistant secretary — told Pensions & Investments that they worry their spots are not filled yet, as it leaves the agency at a standstill and without needed representation, they said.
EBSA has also been impacted by retirement and resignation offers, with Gomez hearing that more than 120 employees have left the small agency — which had less than 800 employees when she left in January, she said — adding that 120 is likely “an understated number.” In March, EBSA reinstated probationary employees previously laid off, though both Gomez and Khawar said that the move would not help with employee retention.
Though the rule was upheld in court, the DOL is now considering rescinding a Biden-era rule that permits retirement plan fiduciaries to consider environmental, social and governance factors when selecting investments, according to an April 21 filing in the 5th U.S. Circuit Court of Appeals in New Orleans.
Gomez contended that “if you take away all the noise, (the rule) is something that is very basic and should be retained.”
Separately, the 5th Circuit recently granted a request for more time to review a consolidated lawsuit against the department’s Retirement Security Rule, commonly called the fiduciary rule. The rule, which two U.S. district judges halted in court, alters the definition of a fiduciary, changing it so one-time advice, such as rollovers to IRAs or annuity purchases, must be in an investor’s best interest, among other things.
“I think there’s every indication that they’re (the DOL’s) considering walking away from the rule,” according to Khawar, who contended that “the problem isn’t … going to disappear” from undoing the rule.
Khawar noted that the fiduciary rule has a long history with a repeated pattern of each administration overhauling the last version of the rule.
After an Obama-era rule was overturned in court, the DOL issued another rule under the first Trump administration, which the Biden rule then overturned.
“This kind of back and forth is not really helpful” to regulators or the regulated community, Khawar said, contending it creates more burdens on those trying to comply. He added that he worries about "regulatory certainty" if the rule is left behind.
Gomez was cautiously optimistic, stating that it’s “a good sign, at least in my mind,” that the DOL is asking for more time to review the lawsuit.
Separately, in February, the American Federation of Labor and Congress of Industrial Organizations, along with four affiliated unions and the Economic Policy Institute, filed a lawsuit to stop DOGE from accessing Labor Department data.
Both Khawar and Gomez said they’re concerned about protecting the data, which includes sensitive information such as Social Security numbers and personal health information.
On April 17, a federal judge ruled the groups can move forward with their lawsuit, denying the government's attempt to dismiss the case.
“The American people deserve to know what is happening behind closed doors as Elon Musk and his DOGE staff hide in the shadows, create chaos and make decisions that dramatically affect the lives of millions of families,” said Skye Perryman, president and CEO of Democracy Forward, a national legal organization representing the groups in the lawsuit, in an April 17 news release.