DOL’s guidance gives employers room to fund or facilitate Trump Account contributions without creating an ERISA plan.

When Congress created Trump accounts under the One Big Beautiful Bill Act, one of the questions employers quickly focused on is whether providing employees with a plan under which contributions may be made to Trump accounts would constitute a plan subject to Title I of ERISA.

In Technical Release 2026-02, released on June 18, 2026, the Department of Labor (DOL) answered the ERISA question: Trump account contribution programs generally will not constitute “employee pension benefit plans” for purposes of Title I of ERISA, with the limited exception of a Trump account beneficiary who is an employee eligible under the plan.

Given that ERISA-governed plans are subject to strict fiduciary duties and reporting obligations, DOL’s view that contribution programs for Trump accounts generally are not pension plans subject to ERISA is welcome news.  

A Refresher on Trump Accounts

As discussed in more detail in an earlier post, Trump accounts are individual retirement accounts for minor children.  During the child’s “growth period” (generally, beginning with the establishment of the Trump account and ending December 31 of the year before the child turns 18), the child may receive contributions from family members, employers, governmental entities, and charities, family members, and others. Any child born during 2025–2028 is eligible to receive a $1,000 Trump account contribution from the federal government. 

Trump accounts can be opened – and contributions made – starting on July 4, 2026.  Treasury creates the initial Trump account; a subsequent rollover Trump account can be set up for the same child.  Only one Trump account can exist for a child at any given time.   

Employers can operate contribution programs under which the employer contributes to the Trump accounts of their employees or their employees’ dependents, or the employer can provide employees the opportunity to make salary reduction contributions to their dependents’ Trump accounts on a pre-tax basis under a cafeteria plan.  DOL also expects employers to make available to employees the ability to make payroll deductions to facilitate contributions to Trump accounts without establishing a contribution program.  Any such payroll deduction contributions that are not under a cafeteria plan would not be made on a pre-tax basis.

DOL Generally Views Trump Account Contribution Programs as Not Subject to ERISA

In the only material guidance expected from DOL regarding Trump account contribution programs, DOL provided two avenues for the programs to avoid ERISA.

• Trump account beneficiaries (usually) aren’t employees.  Most Trump account beneficiaries are employees’ children or relatives, not the employees themselves.  DOL concluded that Trump account contribution programs, whether they provide employer contributions or pre-tax salary reduction contributions under a cafeteria plan, are simply not subject to ERISA without regard to the source of contribution if the accounts under these programs are not the employees’ own account because in that case the program does not “provide retirement income to employees” as required by ERISA section 3(2), which defines the term “employee pension plan” for purposes of ERISA.
• If Trump account beneficiaries are employees.  In those limited situations that an employee is the Trump account beneficiary, the DOL stated that a Trump account contribution program providing employer contributions to employee Trump account beneficiaries may be viewed as subject to ERISA as an employee pension plan.  To avoid this treatment, DOL provides a new rule that appears to operate as a safe harbor.  Under this new rule, DOL’s view is that employer contributions to an employee’s Trump account would not constitute an employee pension plan if participation is completely voluntary for employees and the employer does not (1) impose conditions on utilization of Trump accounts beyond what is provided under the Internal Revenue Code, (2) make or influence investment decisions with respect to Trump account funds, (3) represent that a Trump account contribution program is an employer pension or welfare benefit plan, or (4) receive compensation in connection with a Trump account.

Although not stated explicitly in the DOL guidance, employers that want to offer an employer program without there being any possibility that they would need to rely on this new rule can structure their employer program to include only pre-tax salary reduction contributions under a cafeteria plan.  Alternatively, employers could exclude from an employer contribution program any employee under age 18. Under either scenario, contributions are not permitted to be made to an employee’s Trump account and therefore the only contributions under the program would be to accounts of dependents.  Accordingly, under the general rule described above, ERISA does not apply to the program.

Finally, for those employers who wish to facilitate Trump account contribution programs without establishing an employer program, DOL specified that the long-standing IRA payroll deduction safe harbor set forth at 29 C.F.R. 2510.3-2(d) is available to avoid treatment as an employer pension plan.  Under that safe harbor, such a payroll deduction program is not an employer pension plan subject to ERISA if: (1) there are no employer contributions; (2) participation is voluntary; (3) there is no employer endorsement, and (4) the employer does not receive consideration (except reasonable compensation for payroll deduction services actually provided). 

Thompson Hine Takeaways

We expect that most employers who are interested in establishing Trump account contribution programs intend to do so through a pre-tax salary-reduction feature under a cafeteria plan and/or by providing what has been referred to as a “match” of the $1,000 seed money provided to the Trump accounts of eligible children born between 2025 – 2028, which is an employer contribution. For the most part, DOL has clarified its view that ERISA does not apply to these arrangements.

For employers that employ minors, the simplest path for offering such a contribution program would be to preclude such minor employees from being eligible to receive employer contributions to their own Trump accounts through either an explicit exclusion under the program or through limiting the program to pre-tax contributions under a cafeteria plan.  Excluding minor employees from being eligible to receive employer contributions may give rise to nondiscrimination issues under the Internal Revenue Code, which the expected additional Treasury/IRS guidance may address.

Employers that employ and do not intend to exclude minors from a Trump account contribution program that provides employer contributions should proceed carefully to ensure the program satisfies the new DOL rule for Trump accounts. In practice, that means, among other things, that employers should review employee communications, provider references, enrollment support, and payroll processes before launch.

For employers who are interested in establishing Trump account contribution programs but would like additional comfort regarding the applicability of ERISA to the program, there are steps that can be taken, both in the design and administration of the program, to provide that additional comfort.

Note that we’re still awaiting additional guidance from Treasury and the IRS regarding important aspects about how these programs work under the Internal Revenue Code, including applicable nondiscrimination rules and how these programs may be provided under the cafeteria plan rules.  We expect that additional guidance to be published soon.