ML BeneBits

Much has been written, on ML BeneBits and elsewhere, about the US Department of Labor’s (DOL’s) so-called “ESG Rule” issued in November 2022 (the DOL Rule). The DOL Rule, in part, addressed the appropriate factors for an ERISA fiduciary to consider when making investment decisions, including the potential use of environmental, social, and governance (hence, ESG) factors in ERISA investment decision-making. But there was more to that rule than the ESG topics that seem to dominate the spotlight.

The COVID-19 public health emergency and presidential declaration of national emergency are intended to end on May 11 and the US government recently issued guidance on unwinding these emergency declarations.

The Internal Revenue Service (IRS) recently issued proposed regulations that would require forfeitures in defined contribution plans—i.e., unvested benefits forfeited by terminating defined contribution plan participants—to be used to offset employer contributions or pay reasonable plan administrative expenses, or otherwise be allocated to participants, by the end of the year following the year of forfeiture.

Both the US House of Representatives and the Senate passed a resolution to overturn the US Department of Labor’s so-called “ESG Rule” on February 28 and March 1, 2023, respectively. The ESG Rule has been a topic of debate as it sought to clarify the role that environmental, social, and governance (ESG) factors can play in fiduciary decision-making on behalf of retirement plans regulated by ERISA. This resolution is part of a larger effort to limit ESG investing at both federal and state levels.

The Employee Benefits Security Administration (EBSA) of the US Department of Labor (DOL) has continued to be active in civil and criminal enforcement investigations of ERISA’s fiduciary duties. This blog post details two recent updates concerning the DOL’s ERISA enforcement program.

The SECURE Act 2.0 makes changes to the US employer retirement plan system with respect to both single employer plans and to “applicable collectively bargained plans.” Applicable collectively bargained plans are defined in the statute as plans maintained pursuant to one or more collective bargaining agreements between employee representatives and one or more employers, i.e., multiemployer plans.

The IRS proposed a revised version of Treas. Reg. § 1.401(a)-21 (the Proposed Regulation) that, if finalized, would make permanent the option of remote witnessing of required spousal consents to certain retirement plan distribution elections and loan elections. The IRS had temporarily authorized remote witnessing in limited circumstances during the COVID-19 pandemic as a matter of practical necessity. The Proposed Regulation, issued on December 30, 2022, makes remote witnessing permanent, effective six months after the Proposed Regulation is finalized by the IRS. Until that finalization date, the IRS notes that taxpayers may rely on the rules set forth in the Proposed Regulation.

The Pension Benefit Guaranty Corporation (PBGC) is now allowing multiemployer pension plans that are applying for special financial assistance (SFA) to request relief from the standard withdrawal liability calculation requirements that would otherwise apply under the PBGC’s original final rule under 29 CFR Part 4262 (the Original Final Rule). The Original Final Rule, which took effect in August 2022, created various conditions for multiemployer plans receiving SFA, including conditions on the calculation of withdrawal liability.

The Biden administration intends to end the national emergency and public health emergency declarations (Emergency Declarations) attributable to the COVID-19 pandemic on May 11, 2023. The COVID-19 pandemic brought multiple temporary changes for ERISA-governed group health and welfare plans that will sunset at the conclusion of the Emergency Declarations. It remains to be seen what, if any, guidance will come from the regulatory agencies outlining how these mandates will be phased out or, potentially, if any continuing obligations will remain.

The SECURE 2.0 Act of 2022 (SECURE Act 2.0) makes far-reaching changes to the US retirement plan system. Our initial SECURE Act 2.0 LawFlash provided a general overview of its significant provisions. This blog post—one in our series of coverage on SECURE Act 2.0—focuses on provisions unique to employee stock ownership plans (ESOPs).