Episode 90: Ask an ERISA Attorney

I think we're going to start off with a bang here in our potpourri of topics.

And we're going to talk about DOL activity, Department of Labor activities.

So fun stuff out of the way up front, Department of Labor audits.

So I know that there was some communication about focuses and timeframes and things like that that came out a couple of months ago.

But what are you seeing, Brandon, in your practice? What are EPSA investigators most focused on today? Have you seen any shifts in that focus up last few years? Like, what are you seeing on the ground?

For most of my career, a Department of Labor audit or investigation, as they call it, has focused on the retirement side.

I've been involved in a number of investigations where they're looking at, like on defined contribution plans, late deposits, and plenty of other issues.

But the investigations have all been retirement focused, and that is really all that we've worried about.

I would say now the Department of Labor, if you were talking to an investigator, they would tell you that they're mostly focused on the health and welfare side and specifically on mental health parity compliance.

That seems to be the number one draft pick of issues that they're focused on.

I also noticed that the EBSA, the component of the Department of Labor that has the folks that enforce the laws related to benefit plans, I think they are down from 800 employees, which is not very many under Lisa Gomez, to somewhere around 500 now or maybe a little less than that.

And those are not all investigators, but that is the number of people charged with enforcing the law for all benefit plans in the entire country.

So that's not very many people to do a lot of work for a lot of different plans.

In addition to focusing on health and welfare plans more than retirement now, they are very careful about what they actually choose to investigate.

So in the past, when an employee would call and complain, because, you know, any employee can call the Department of Labor and complain about something, and the Department of Labor will call and follow up on each one of those.

But they seem to be much less inclined to open up a full-blown investigation from just an inquiry.

They are pretty selective, it seems.

I also think, maybe lastly on this, they seem to be focusing on service providers.

Instead of auditing McAfee Taft, they could audit, and I'm just using Blue Cross, for example, and they could get at a lot more plans or United or Cigna or Aden or whoever.

But whatever service providers that are out there in the industry, they seem to be focused on trying to audit those providers because then they can deal with a lot more.

They can get a lot more bang for their buck in terms of their time.

Yeah, one-to-many.

If you have limited staff, right, focusing on one-to-many versus the one-to-one hand combat, it makes a lot of sense.

That sounds like

if you're a retirement plan sponsor, at least, maybe that's somewhat a bright spot.

I think we're going to start off with a bang here in our potpourri of topics.

And we're going to talk about DOL activity, Department of Labor activities.

So fun stuff out of the way up front, Department of Labor audits.

So I know that there was some communication about focuses and timeframes and things like that that came out a couple of months ago.

But what are you seeing, Brandon, in your practice? What are EPSA investigators most focused on today? Have you seen any shifts in that focus up last few years? Like, what are you seeing on the ground?

For most of my career, a Department of Labor audit or investigation, as they call it, has focused on the retirement side.

I've been involved in a number of investigations where they're looking at, like on defined contribution plans, late deposits, and plenty of other issues.

But the investigations have all been retirement focused, and that is really all that we've worried about.

I would say now the Department of Labor, if you were talking to an investigator, they would tell you that they're mostly focused on the health and welfare side and specifically on mental health parity compliance.

That seems to be the number one draft pick of issues that they're focused on.

I also noticed that the EBSA, the component of the Department of Labor that has the folks that enforce the laws related to benefit plans, I think they are down from 800 employees, which is not very many under Lisa Gomez, to somewhere around 500 now or maybe a little less than that.

And those are not all investigators, but that is the number of people charged with enforcing the law for all benefit plans in the entire country.

So that's not very many people to do a lot of work for a lot of different plans.

In addition to focusing on health and welfare plans more than retirement now, they are very careful about what they actually choose to investigate.

So in the past, when an employee would call and complain, because, you know, any employee can call the Department of Labor and complain about something, and the Department of Labor will call and follow up on each one of those.

But they seem to be much less inclined to open up a full-blown investigation from just an inquiry.

They are pretty selective, it seems.

I also think, maybe lastly on this, they seem to be focusing on service providers.

Instead of auditing McAfee Taft, they could audit, and I'm just using Blue Cross, for example, and they could get at a lot more plans or United or Cigna or Aden or whoever.

But whatever service providers that are out there in the industry, they seem to be focused on trying to audit those providers because then they can deal with a lot more.

They can get a lot more bang for their buck in terms of their time.

Yeah, one-to-many.

If you have limited staff, right, focusing on one-to-many versus the one-to-one hand combat, it makes a lot of sense.

That sounds like

if you're a retirement plan sponsor, at least, maybe that's somewhat a bright spot.