The Department of Labor’s Employee Benefits Security Administration (EBSA) does not frequently issue Field Assistance Bulletins (FABs); in fact, in the last decade, there have only been ten FABs issued. Furthermore, EBSA rarely uses them to articulate an overarching enforcement philosophy. The usual offering is guidance on notice requirements and announcements of EBSA’s temporary enforcement policies for a specific issue in the absence of regulatory guidance.
FAB 2026-01 is different in that it signals not just a temporary enforcement policy, but a meaningful shift in how EBSA intends to exercise its enforcement discretion. For plan sponsors and fiduciaries, the practical implications may be more significant than the document initially suggests.
EBSA’s Priorities and Guiding Principles
FAB 2026-01 sets out a series of enforcement principles that, taken together, provide a window into EBSA’s current priorities and constraints:
• The FAB publicly frames EBSA’s approach to enforcement and outlines four principles that guide investigative priorities and practices, internal review, and case development.
• While some of these principles restate existing practices, others reflect a more pronounced administrative shift particularly regarding the types of cases EBSA is willing to pursue.
EBSA’s enforcement priorities as articulated in the FAB are discussed below.
1. Shift Toward Duty of Loyalty
The first guiding principle prioritizes investigations of egregious violations or those resulting in significant participant harm, with an emphasis on breaches of the duty of loyalty. As a principle, the focus on the most egregious conduct is not new, but EBSA’s focus on breaches of the duty of loyalty is new.
EBSA has long pursued fiduciary breaches under both the duties of prudence and loyalty, and historically it has not signaled that loyalty violations should take precedence. The FAB’s framing suggests a recalibration for EBSA to avoid cases that are based solely on fiduciary breaches of the duty of prudence. While EBSA does not define egregious conduct or significant harm, the FAB does provide an example: the promotion of environmental, social, or governance (ESG) objectives that are designed to enrich individuals or entities or with goals unrelated to participants’ best interests, will be considered improper plan administration and acting in bad faith. This example is not surprising given the Trump Administration’s focus on ESG considerations in retirement plans (e.g., December 11, 2025 Executive Order “Protecting American Investors from Foreign-Owned and Politically-Motivated Proxy Advisors”).
If this emphasis holds in practice, it could mean fewer investigations overall, because the guidance directs EBSA to focus on cases that show “direct evidence of disloyalty or impermissible conflicts of interest.” EBSA reiterated its commitment to protect through enforcement of ERISA, specifically the health benefit rules[1], indicating EBSA’s continued focus on its health plan enforcement priorities.
2. Limitation of Regulation Through Enforcement
In order for EBSA to be consistent with its principles of fairness, EBSA discourages regulation through enforcement. The FAB indicates that EBSA should focus on violations that have been clearly established, and that “novel legal theories or interpretations of ERISA should not be first articulated during enforcement actions.”
Historically, EBSA has not shied away from pursuing novel legal theories through investigations, including test cases on novel legal theories. The principle set forth in the FAB curtails those activities and redirects interpretation and regulation to the notice and comment rulemaking process and sub-regulatory guidance. To ensure adherence, absent written approval from EBSA leadership, enforcement activity must have a close nexus to:
- The plain language of ERISA;
- Clearly established guidance in final regulations or prominently published sub-regulatory guidance; or
- Clearly established case law.
Notably, EBSA states that all ongoing and proposed employee stock ownership (ESOP) investigations should be reviewed against the principle of fairness. This suggests that certain ESOP investigations will not be pursued and certain current ESOP investigations will be suspended.
3. Centralization and Leadership Oversight of Significant Enforcement Activity
The FAB’s third principle requires that significant enforcement activity – such as proposed settlements, voluntary corrective actions, and novel legal theories – be reviewed by EBSA leadership. While leadership involvement in significant matters is not new, the FAB introduces broader, more flexible triggers for centralized review, including any issues that are of interest or importance to the Assistant Secretary. The guidance effectively consolidates matters for review by leadership that may have been managed at the regional level in the past. From a practical standpoint, this principle suggests a more centralized enforcement model, with less regional variation and greater alignment with national priorities.
4. Enforcement Must Be Responsive and Timely
The fourth principle emphasizes timely and responsive enforcement. This means that routine investigations involving issues such as delinquent employee contributions and disclosure obligations generally should be completed within 18 months, while more complex investigations should be completed within 30 months. While EBSA’s intention to complete investigations within specific timeframes is not new, this principle as articulated in the FAB requires that leadership take a more active oversight role in investigations that do not meet these timeframes.
Given the past scrutiny of EBSA’s prolonged investigations by the Committee on Education and the Workforce, it makes sense that this principle is reinforced by the FAB addressing EBSA’s enforcement priorities and principles.
The End of Common Interest Agreements Outside of the four enumerated principles, the FAB indicates that EBSA will not do anything that compromises the Department of Labor’s “independence, integrity and credibility with the regulated or participant communities”, including coordination with plaintiffs’ lawyers. This appears to effectively eliminate common interest agreements between EBSA and private plaintiffs’ counsel. This coordination was previously discussed in our earlier posts here and here.
Thompson Hine Takeaways: What This Means for Plan Sponsors and Fiduciaries
The FAB is a positive development for plan sponsors and fiduciaries, as on the whole it suggests a more restrained and targeted enforcement approach:
- Likely fewer investigations overall, particularly those based on novel or unsettled legal theories or on ESOP valuations.
- Greater focus on clear-cut violations, especially those involving conflicts of interest or significant participant harm.
- Increased focus on fiduciary duty of loyalty and reduced emphasis on standalone prudence claims, absent loyalty concerns.
- More centralized decision-making within EBSA, leading to greater consistency across regions.
For plan sponsors and fiduciaries, the principles articulated in the FAB do not mean there is no enforcement risk, but it does shift where that risk is most acute. Given EBSA’s shift in focus to conduct involving breaches of the duty of loyalty, it is a good time to revisit the plan’s conflicts of interest policy, and ensure there are appropriate processes, procedures, and fiduciary governance to prevent and avoid non-exempt prohibited transactions. And because EBSA reiterated its commitment to enforce ERISA with respect to health benefit plans, now is the time to shore up fiduciary processes with respect to those plans. Importantly, strengthening fiduciary processes will also serve to potentially reduce litigation risk, as the plaintiffs’ bar remains active in bringing private actions.
If you have questions, please contact any of the authors or your regular Thompson Hine attorney.
[1] This health benefit rules reference are those pursuant to Part 7, disclosure requirements, claims processing, and adjudication requirements.