ERISA — Employee Retirement & Benefits Law

The Employee Retirement Income Security Act of 1974 (ERISA) is the foundational federal law governing private-sector employee benefit plans — covering both retirement plans (401(k)s, pensions, profit-sharing) and welfare benefit plans (health insurance, disability, life insurance). ERISA sets minimum standards for plan funding, vesting, disclosure, and fiduciary conduct, and gives employees the right to sue for benefits and breaches of fiduciary duty. Its most powerful feature for employers is also its most consequential for employees: ERISA broadly preempts state laws "relating to" employee benefit plans, meaning that states cannot regulate the terms of employer-sponsored health and retirement plans. This preemption is why self-insured employer health plans don't have to follow state insurance mandates — and why 60% of Americans with employer coverage are in plans that are largely exempt from state-level consumer protections that apply to fully-insured plans. For workers, understanding whether your plan is ERISA-governed determines what rights you have, who enforces them, and where you can sue.

Current Law (2026)

Legal Authority

• 29 U.S.C. § 1001 — Congressional findings and policy (growth of employee benefit plans has enormous impact on commerce; employees lack adequate information and safeguards; need for minimum standards of plan administration, fiduciary conduct, vesting, and funding)
• 29 U.S.C. § 1002 — Definitions (employee welfare benefit plan, employee pension benefit plan, participant, beneficiary, fiduciary, plan administrator, plan sponsor)
• 29 U.S.C. § 1003 — Coverage (applies to employee benefit plans established or maintained by employers in interstate commerce; exempts governmental plans, church plans, workers' comp, and foreign plans)
• 29 U.S.C. § 1021 — Duty of disclosure and reporting (plan administrators must publish to participants and beneficiaries a summary plan description, annual report, and summary of material modifications)
• 29 U.S.C. § 1022 — Summary plan description (must be written in a manner calculated to be understood by the average plan participant; must include eligibility requirements, descriptions of benefits, claims procedures, and plan termination provisions)
• 29 U.S.C. § 1023-1024 — Annual reports and filing (annual financial report with receipts, disbursements, assets, and liabilities; filed with DOL; participants may request documents from the plan administrator)
• 29 U.S.C. § 1053 — Minimum vesting standards (3-year cliff vesting or 2-to-6-year graded vesting for employer contributions; employee contributions are always 100% vested)
• 29 U.S.C. § 1054 — Benefit accrual requirements (defined benefit plans must satisfy one of three accrual rules ensuring benefits accrue ratably over career; protects against backloading)
• 29 U.S.C. § 1056 — Form and payment of benefits (restrictions on assignment or alienation of benefits; QDRO exception for domestic relations orders; required commencement at normal retirement age or actual retirement)
• 29 U.S.C. § 1055 — Joint and survivor annuity requirement (defined benefit pension plans must provide qualified joint and survivor annuity as default form of payment; preretirement survivor annuity for spouse if participant dies before retirement; spouse must consent to waive)
• 29 U.S.C. § 1082-1085 — Minimum funding standards (employers must fund defined benefit pensions according to actuarial calculations; at-risk plans face accelerated funding; multiemployer plans in critical/endangered status have additional rules)
• 29 U.S.C. § 1104 — Fiduciary duties (fiduciary must act solely in interest of participants/beneficiaries; with care, skill, prudence, and diligence of a prudent person; diversify investments to minimize large losses; act in accordance with plan documents consistent with ERISA)
• 29 U.S.C. § 1106 — Prohibited transactions (fiduciary cannot cause plan to transact with parties in interest — sale/exchange/lease of property, lending money, furnishing services, transferring plan assets; prevents self-dealing and conflicts of interest)
• 29 U.S.C. § 1109 — Liability for breach of fiduciary duty (fiduciary personally liable to make good losses resulting from breach; restore to plan any profits from use of plan assets; subject to equitable or remedial relief as court may determine)
• 29 U.S.C. § 1131 — Criminal penalties (willful violation of reporting/disclosure requirements: up to $100,000 fine and 10 years imprisonment; $500,000 for non-natural persons)
• 29 U.S.C. § 1132 — Civil enforcement (participants may sue to recover benefits, enforce rights, or obtain clarification; Secretary of Labor may sue for fiduciary breaches; fiduciaries may seek plan interpretation; attorney's fees available to either party at court's discretion)
• 29 U.S.C. § 1133 — Claims procedure (every plan must provide adequate written notice of denial, with specific reasons, relevant provisions, and description of appeals process; full and fair review of denied claims)
• 29 U.S.C. § 1144 — ERISA preemption (ERISA supersedes any and all state laws insofar as they relate to any employee benefit plan; exceptions for state insurance, banking, and securities regulation; "savings clause" and "deemer clause" interplay)

Implementing Regulations (CFR)

• 29 CFR Part 2510 — Definitions and coverage:

  • 29 CFR 2510.3-3 — Employee benefit plan (definition and scope)
  • 29 CFR 2510.3-21 — Definition of "Fiduciary" (investment advice standard, five-part test)

• 29 CFR Part 2520 — Rules and Regulations for Reporting and Disclosure (56 sections — the operational rules for ERISA's two main compliance obligations: reporting to DOL and disclosing plan information to participants; most employers managing benefit plans interact with Part 2520 through the Form 5500 annual report and the Summary Plan Description):

  Participant notices and special disclosures (Subpart A, §§ 2520.101-1 through 2520.101-6):

  • § 2520.101-2 — Multiple Employer Welfare Arrangements (MEWAs): health benefit arrangements covering employees of two or more unrelated employers must file Form M-1 with DOL annually; MEWAs are a category with significant fraud history — the filing requirement gives DOL visibility into these arrangements before problems develop
  • § 2520.101-3 — Blackout period notice: before any blackout period in an individual account plan (a period of 3+ consecutive business days when participants cannot direct investments, obtain loans, or take distributions — typically during system conversions or fund lineup changes), the plan administrator must give participants at least 30 days advance written notice; notice must explain the reasons for the blackout, which assets are affected, the expected blackout dates, and steps participants should take in advance; the requirement was enacted after the Enron scandal, where participants were locked out of their accounts while executives were selling stock
  • § 2520.101-5 — Annual funding notice for defined benefit plans: administrators of all defined benefit pension plans (not just multiemployer) must distribute an annual funding notice to participants and beneficiaries, specifying the plan's funding percentage, the value of plan assets vs. liabilities, any funding shortfall, whether the plan is in endangered/critical status (multiemployer plans), and the maximum PBGC guarantee amount applicable to their benefit
  • § 2520.101-6 — Multiemployer plan information on request: participants in multiemployer plans may request copies of the plan's most recent annual funding notice, the actuarial valuation, the withdrawal liability determination, and other documents within 30 days of request; failure to provide timely responses is subject to civil penalties

  Summary Plan Description requirements (Subpart B, §§ 2520.102-2 through 2520.102-4):

  • § 2520.102-2 — Style and format: the SPD must be written in a manner calculated to be understood by the average plan participant — avoiding legalese and technical terms without explanation; it must use cross-references and indexes for complex plans; foreign language assistance must be provided when 10% or more of participants are literate only in a non-English language; SPDs that merely paraphrase the plan document in legal language do not satisfy this standard
  • § 2520.102-3 — Required SPD contents: the SPD must include the plan's formal name and type; the EIN; eligibility requirements; description of benefits; rules for claiming benefits; circumstances that can cause loss or denial of benefits; procedures for grievances and appeals; a description of COBRA continuation rights; the ERISA Statement of Rights (§ 2520.102-3(t)); and a description of any funding mechanism; omissions of material facts from the SPD can create estoppel claims against the plan if a participant relies on the incomplete description

  Annual report requirements (Subpart C, §§ 2520.103-1 through 2520.103-14):

  • § 2520.103-1 — Annual report contents: the Form 5500 Annual Report must include financial statements (plan assets, liabilities, income, expenses), notes to financial statements, and accountant's report (for large plans with 100+ participants); small plans (fewer than 100 participants) may file the simplified Form 5500-SF and are exempt from the independent audit requirement under § 2520.104-46
  • § 2520.103-10 — Financial schedules: large plan annual reports must include a Schedule of Assets Held for Investment (listing every investment with cost basis and current value), a Schedule of Reportable Transactions (single transactions exceeding 5% of plan assets), and a Schedule of Nonexempt Transactions (prohibited transactions during the year, even if subsequently corrected); these schedules are the primary tool for DOL to detect investment misconduct and excessive fees
  • § 2520.104b-1 — Disclosure methods: plan administrators may distribute required materials electronically (email, plan websites) if participants have effective access; participants who do not have electronic access must receive paper copies; the electronic disclosure rule has been updated twice (2002 and 2020) as internet access has become more universal

  Lifetime income disclosure (§ 2520.105-3): since September 2021, defined contribution plans must include in annual benefit statements a lifetime income illustration — showing the participant's current account balance expressed as an estimated monthly income payment if it were converted to an annuity at age 67; the illustration must use DOL-specified assumptions (interest rate, mortality table) and include a disclaimer that the estimate is not a guarantee; this requirement reflects Congress's concern that participants focus on lump-sum balances rather than whether their savings will support them in retirement

  Small plan audit waiver (§ 2520.104-46): plans with fewer than 100 participants at the beginning of the plan year are exempt from the independent audit requirement if they meet a "qualifying condition" — essentially that plan assets are held in qualifying assets (mutual funds, bank deposits, annuities, registered securities) with minimal exposure to hard-to-value investments; small plans that fail the qualifying condition test must obtain an accountant's opinion even if they have fewer than 100 participants

  Part 2520's reporting and disclosure requirements create the foundational accountability structure for ERISA's enforcement. The Form 5500 data — submitted electronically through DOL's EFAST2 system and publicly available — is the primary source of information about the private pension and health benefit system: plan size, assets, fees, service providers, and funding levels. DOL and IRS use 5500 data for audit selection, and plaintiffs' attorneys use the publicly available data to identify potential excessive fee cases.

• 29 CFR Part 2530 — Rules and Regulations for Minimum Standards for Employee Pension Benefit Plans: the DOL's implementing rules for ERISA's participation, vesting, and benefit accrual requirements under Title I, Part 2. Part 2530's most important provisions establish the technical definitions that determine when an employee's service is counted for pension purposes. Key provisions:

  • § 2530.200a — Scope and DOL/IRS coordination: ERISA's minimum standards in Parts 2 and 3 are jointly administered by DOL and IRS (via IRC §§ 410–411); Treasury regulations on participation and vesting also apply for ERISA purposes (§ 2530.200a-2), and DOL's regulations on hours of service and break-in-service also apply for IRC purposes (§ 2530.200a-3); this dual jurisdiction means ERISA pension plans must comply with both sets of regulations, and inconsistency between DOL and IRS rules can create compliance complexity
  • § 2530.200b-2 — Hour of service (the foundational counting unit): an "hour of service" is any hour for which an employee is paid or entitled to payment — including time actually worked, paid leave (vacation, sick, holiday), time during which work is prevented (layoff, jury duty, military service), and time for back pay awards; the definition of what counts as an hour of service determines when an employee earns credit toward a "year of service" for participation and vesting purposes; plans must count at least these minimum hours and may count more
  • § 2530.200b-3 — Methods for determining hours of service: because tracking exact hours is burdensome for some employers, Part 2530 permits three alternative methods for determining service: (1) actual hours — counting each hour actually paid or entitled to payment; (2) equivalencies based on periods of employment — crediting a fixed number of hours for each day, week, month, or shift worked (e.g., crediting 8 hours for each day any work is performed); (3) elapsed time method — crediting service for the period from hire to separation rather than counting individual hours; the equivalency and elapsed time methods reduce administrative burden but generally provide somewhat more liberal credit than the actual hours method
  • § 2530.200b-4 — One-year break in service: a "break in service" occurs when an employee fails to earn the minimum hours of service required in a computation period (typically 500 hours); a one-year break can affect vesting by freezing vesting credits until the employee returns; the Rule of Parity (§ 2530.200b-4(b)) allows plans to disregard pre-break service if the number of consecutive break years equals or exceeds the pre-break service years (preventing employees with minimal service from retaining credit through long breaks); the break rules were designed to protect employees who leave temporarily (for family reasons, illness, or layoff) from losing vesting credit they had accumulated
  • Subparts B and C — Participation, vesting, and benefit accrual computation: the broader framework in Part 2530 translates the statutory minimums of ERISA §§ 202–204 into operational procedures for plan administration: how to count participation years (determining when an employee becomes eligible to join the plan), how to compute vesting years (determining when employer contributions become non-forfeitable), and how to compute benefit accrual periods for defined benefit plans (determining how much monthly pension benefit is earned per year of service)

  The technical definitions in Part 2530 — particularly "hour of service" and "break in service" — are the operational foundation of ERISA's minimum vesting protections. When an employee disputes whether their pension service was correctly credited, or why they weren't eligible to participate in the plan, the answer almost always traces to Part 2530 definitions. Part-time employees (common in retail, hospitality, and healthcare) are particularly affected: a part-time employee who works fewer than 1,000 hours per year may not earn a "year of service" under ERISA's minimum standards, allowing the plan to exclude them from participation and vesting until they accumulate qualifying service — a structural gap in ERISA coverage for part-time workers that has generated ongoing legislative proposals for reform.

• 29 CFR Part 2509 — Interpretive bulletins:

  • 29 CFR 2509.75-5 — Questions and answers relating to fiduciary responsibility
  • 29 CFR 2509.75-8 — Fiduciary responsibility under ERISA (comprehensive Q&A)
  • 29 CFR 2509.95-1 — Selecting an annuity provider for benefit distributions (fiduciary standards)

• 29 CFR Part 2550 — Fiduciary responsibility:

  • 29 CFR 2550.404a-5 — Fiduciary requirements for disclosure in participant-directed individual account plans (fee and investment transparency)
  • 29 CFR 2550.404c-5 — Qualified default investment alternatives (QDIA requirements for plans with automatic enrollment)

• 29 CFR Part 2570 — Procedural Regulations Under ERISA (114 sections — the DOL's procedural framework for ERISA's two primary enforcement mechanisms: prohibited transaction exemption applications and civil penalty proceedings under ERISA § 502(c)). Six substantive subparts:

  Subpart B — Prohibited Transaction Exemption Applications (§§ 2570.30–2570.52): ERISA § 406 prohibits fiduciaries from engaging in transactions with "parties in interest" (the employer, service providers, unions, and large plan participants) unless a statutory or administrative exemption applies. When no statutory exemption covers a desired transaction, the plan may apply to EBSA for an individual or class exemption under § 2570.32:

  • § 2570.34 — Required application content: every exemption application must identify the parties, describe the transaction in detail, explain the economic terms and the reason the transaction is in the interest of plan participants, include an independent appraisal, and provide a legal analysis of why the transaction would otherwise violate ERISA § 406 or § 407; incomplete applications are rejected without further review under § 2570.33
  • § 2570.42 — Notice of proposed exemption: if DOL tentatively approves an application, it publishes a notice in the Federal Register; interested persons have at least 45 days to submit comments and may request hearings under § 2570.46 when the exemption involves fiduciary self-dealing or conflicts of interest
  • § 2570.48 — Decision standard: DOL may grant an exemption only if it is administratively feasible, in the interests of the plan and its participants, and protective of participants' rights; individual exemptions affecting fiduciary self-dealing require a hearing before an independent ALJ before approval
  • § 2570.50 — Revocation: DOL may revoke an exemption if material facts change or if the representations on which the exemption was based prove to be false; the exemption does not protect the fiduciary from liability for conduct inconsistent with its terms (§ 2570.49)

  Subparts A, C, E, G, I — Civil Penalty Proceedings (§§ 2570.1–2570.12 and parallel subparts): ERISA § 502(c) authorizes DOL to assess civil penalties on plan administrators who fail to provide required documents to participants. Each subpart covers a separate penalty provision — § 502(c)(2) for refusal to provide plan documents (up to $110/day), § 502(c)(5) for failure to provide blackout period notice (up to $131/day per participant), § 502(c)(6) for Annual Report failures (up to $250/day), § 502(c)(7) for failure to provide automatic rollover notice, and § 502(c)(8) for failure to provide pension benefit statements. Penalty proceedings follow Administrative Procedure Act rules: EBSA issues a notice of intent to assess, the plan administrator may request a hearing before a DOL ALJ, and the ALJ's decision is subject to review by the Secretary. Penalties are assessed per-day-per-participant or per-day per violation, making systematic disclosure failures extremely costly.

  The prohibited transaction exemption process under Part 2570 Subpart B is the operational pathway for complex financial transactions involving ERISA plans — particularly in private equity (where the fund manager may be a party in interest), real estate (where the employer may wish to sell property to its own plan), and financial services (where banks providing plan services may wish to engage in other transactions with the plan). The volume of exemption applications and their legal significance make the Part 2570 process a significant area of ERISA practice. As of 2025, DOL typically processes 50–100 exemption applications per year; most involve complex investment structures in private market funds.

• 20 CFR Part 901 — Regulations Governing the Performance of Actuarial Services Under ERISA (the JBEA's rules for enrolling, examining, and disciplining enrolled actuaries — the credentialed professionals who must sign annual valuations certifying that defined benefit pension plans are adequately funded; authority: ERISA § 3042, 29 U.S.C. § 1241; JBEA is jointly chaired by IRS and DOL officials):

  • § 901.12 — Eligibility for enrollment: to become an enrolled actuary, an individual must meet three requirements: (1) an experience requirement — at least 9 months of professional actuarial experience in pension plan funding or valuation within the 5 years preceding application; (2) a basic actuarial knowledge examination — the Joint Board's written exam testing knowledge of probability, interest theory, and life contingencies (or a recognized equivalent credential from a professional actuarial organization such as the Society of Actuaries or Casualty Actuarial Society); and (3) a comprehensive examination — the Joint Board's advanced exam covering pension law, benefit plan design, ERISA funding requirements, and actuarial valuation methods specific to defined benefit plans
  • § 901.13 — Continuing professional education (CPE): enrolled actuaries must complete at least 36 hours of CPE per 3-year renewal period, with a minimum of 12 hours per year; at least 18 hours must be in technical subjects (actuarial mathematics, pension law, valuation methods) and at least 2 hours per year in professional standards and ethics; CPE must be obtained from approved providers (including actuarial professional organizations and other approved sources); failure to meet CPE requirements is grounds for non-renewal and potential sanction
  • § 901.30 — Sanctionable acts: an enrolled actuary may be sanctioned (censure, suspension, or termination of enrollment) for: willful failure to sign a required actuarial statement; providing actuarial services while under suspension; gross incompetence or gross misconduct in the performance of actuarial services; knowingly providing false information in the actuarial certification; engaging in disreputable conduct; or violating provisions of ERISA or the Internal Revenue Code in the performance of actuarial services
  • § 901.32 — Sanction proceedings: the JBEA follows the Administrative Procedure Act for sanction proceedings; an enrolled actuary facing disciplinary action receives written notice of the charges, an opportunity to respond in writing, and the right to appear before a hearing officer; decisions are subject to review by the full Joint Board; sanctions are published in the Federal Register, alerting plan administrators and the profession to enrolled actuaries who have been disciplined

  The enrolled actuary credential is unique to the ERISA defined benefit pension context: only enrolled actuaries may sign the actuarial certification in the Schedule SB of the Form 5500 Annual Report (for single-employer defined benefit plans) and the Schedule MB (for multiemployer plans). The actuarial certification is the lynchpin of pension funding compliance — it attests that the actuary has used acceptable actuarial methods and assumptions to determine the minimum required contribution. If an enrolled actuary certifies a plan as adequately funded when it is not, both the actuary (under Part 901) and the plan administrator (under ERISA Title I civil penalty provisions) face liability. As defined benefit plans have declined in private industry — from covering 35% of private workers in the 1970s to fewer than 10% today — the enrolled actuary population has also declined; public pension plans are not covered by ERISA and their actuaries are not required to be JBEA-enrolled, though many are.

• 29 CFR Part 2571 — Procedural Regulations for ERISA Section 521 Cease-and-Desist Proceedings (EBSA — governs the procedures for ex parte temporary cease-and-desist order proceedings under ERISA § 521, DOL's emergency enforcement authority against fraudulent or abandoned employee benefit plans):

  • § 2571.1 — Scope: Part 2571 applies to proceedings under ERISA § 521 (29 U.S.C. § 1151), which authorizes the Secretary of Labor to issue a temporary ex parte cease-and-desist order against any person when they have reason to believe the person is engaged in fraudulent conduct involving an employee benefit plan that threatens immediate and irreparable harm to plan participants; this is an exceptional enforcement tool — unlike normal agency proceedings, ex parte orders issue without prior notice or hearing
  • § 2571.2 — Definitions: "adjudicatory proceeding" means a judicial-type proceeding before an ALJ; "party" means any person named as a subject in a Section 521 order or admitted as a party; "respondent" means the person against whom the cease-and-desist order is directed; terms not defined here have the meanings in 29 CFR Part 18 (DOL's general ALJ rules of practice)
  • § 2571.3 — Service: all documents must be served on all parties by personal service, certified mail, or another method reasonably calculated to provide actual notice; service on the DOL is made to the Office of the Solicitor (Plan Benefits Security Division)
  • § 2571.4 — Parties: the Secretary of Labor and the respondent are the initial parties; the ALJ may permit intervention by plan participants or other substantially affected parties; the named plan participants are provided notice but are not automatic parties
  • § 2571.5 — Consequences of default: if the respondent fails to file a timely answer to the temporary order, the ALJ may treat all allegations as admitted and enter a final order based on the ex parte record — an exceptionally strong default rule reflecting the emergency nature of Section 521 proceedings
  • § 2571.6 — Consent order or settlement: at any time after commencement, parties may enter a consent order with the ALJ's approval; consent orders must be in the public interest and must adequately protect plan participants; consent orders are published in the Federal Register
  • § 2571.10 — Secretary's review: any party may appeal the ALJ's decision to the Secretary of Labor; the Secretary's review is on the record — no new evidence, no oral argument; the Secretary's decision is final

  Section 521's cease-and-desist authority is ERISA's emergency response to fraudulent plan operators — particularly those who abandon plans with missing assets, engage in embezzlement of plan funds, or set up sham benefit plans. The ex parte order provision allows DOL to freeze assets and stop the bleeding before an operator can transfer plan funds offshore or dissolve the entity. Because the tool is so powerful — freezing a business's operations without prior hearing — it is used sparingly: EBSA typically brings a handful of Section 521 proceedings per year, in cases involving clear evidence of fraud or abandonment. After the ex parte order issues, Part 2571's hearing procedures kick in to give the respondent a swift opportunity to challenge the order before an ALJ, satisfying due process requirements while maintaining the freeze.

How It Works

ERISA is the comprehensive federal law governing private employer-sponsored benefit plans — both retirement plans (pensions, 401(k)s) and welfare plans (health insurance, disability, life insurance). It sets minimum standards while giving employers wide flexibility in plan design.

ERISA operates through four pillars. Reporting and disclosure (Title I, Part 1) requires employers to give plan participants understandable information — Summary Plan Descriptions, Summary Annual Reports, and benefit statements. Participation, vesting, and funding (Title I, Parts 2–3) sets minimum standards for when employees join pension plans, when their benefits become non-forfeitable, and how much employers must contribute. Fiduciary responsibility (Title I, Part 4) imposes the law's most consequential obligations: anyone who exercises discretion over plan management, assets, or administration is a fiduciary who must act solely in participants' interest, using the care and skill that a prudent person familiar with such matters would apply, diversifying plan investments to minimize the risk of large losses, and avoiding prohibited transactions such as self-dealing, transacting with parties in interest, or receiving kickbacks. A fiduciary who breaches these duties faces personal liability for all resulting plan losses plus disgorgement of profits. Administration and enforcement (Title I, Part 5) provides civil and criminal remedies, including participant lawsuits under 29 U.S.C. § 1132.

ERISA preemption is one of the broadest in federal law: § 1144 supersedes "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan." States generally cannot mandate specific benefits, impose liability on plans, or create state causes of action for benefit denials. The savings clause preserves state insurance regulation, but the deemer clause prevents states from treating self-insured employer health plans as insurance — which is why large employers self-insure and are effectively exempt from state benefit mandates. When a claim is denied, the plan must provide specific written reasons, plan provision references, and appeal instructions; participants have at least 60 days to appeal internally before suing in federal court. Courts often apply a deferential standard of review when plans give administrators discretion, making it difficult to overturn denials. Pension plans are subject to all four pillars including funding minimums and PBGC insurance; welfare plans (health, disability, life insurance) are subject to reporting and fiduciary rules but face no minimum funding or vesting requirements, meaning employers can generally modify or terminate welfare benefits at will.

How It Affects You

State Variations

ERISA's broad preemption clause significantly limits state authority over employer-sponsored benefit plans:

• States cannot regulate self-insured employer health plans (the majority of large employer plans)
• States can regulate insured health plans through their insurance laws (the "savings clause")
• State causes of action for benefit denials (breach of contract, bad faith) are preempted by ERISA
• Several states have pushed the boundaries of preemption through indirect regulation — for example, state health care reform laws, PBM transparency requirements, and surprise billing laws
• The scope of ERISA preemption remains one of the most actively litigated areas of federal law

Pending Legislation

• HR 6084 — ERISA Litigation Reform Act. Raises pleading standards for ERISA benefit claims in federal court, requiring more specific factual allegations. Status: Introduced.
• S 3086 — Restoring Integrity in Fiduciary Duty Act. Requires ERISA fiduciaries to prioritize financial return over non-pecuniary factors when making investment decisions. Status: Introduced.
• HR 6837 — Deems pharmacy benefit managers (PBMs) fiduciaries under ERISA, subjecting them to the prudent person and exclusive benefit standards. Status: Introduced.
• S 3333 / HR 6417 — Modifies rules governing pension-linked emergency savings accounts created by SECURE 2.0, expanding access and contribution flexibility. Status: Introduced.

Recent Developments

• DOL fiduciary rule vacated (March 2026): The 5th Circuit vacated DOL's 2024 Retirement Security Rule redefining "investment advice fiduciary" under ERISA, restoring the pre-2024 five-part test for fiduciary status. PTE 2020-02 amendments were also vacated. For workers receiving rollover advice from brokers, this means reduced protection: brokers recommending IRA rollovers from 401(k)s are no longer automatically subject to ERISA's fiduciary standard, and compensation conflicts of interest (commissions, revenue sharing) are again permissible without the same disclosure and mitigation obligations.
• SECURE 2.0 auto-enrollment mandate takes effect (plan years beginning 2025): SECURE 2.0 requires most new 401(k) and 403(b) plans to automatically enroll eligible employees at a minimum 3% deferral rate, escalating 1% per year to at least 10% (maximum 15%). Existing plans are exempt. The mandate covers plans established after December 29, 2022. Employers who miss the deadline face plan qualification risk; employees covered by auto-enrollment who don't want to participate must affirmatively opt out within 90 days to get their contributions refunded.
• ESG investing in ERISA plans reversed again (2025): The Trump DOL rescinded the Biden administration's 2022 "Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights" rule, restoring the Trump-era rule that prohibited fiduciaries from selecting investments based on non-pecuniary factors like ESG criteria. Plan administrators offering ESG funds in 401(k) lineups face increased scrutiny; several large employers have removed ESG options from their default investment menus to reduce fiduciary risk. Litigation over ESG fund selections in ERISA plans has increased in parallel with the regulatory reversals.
• Fee transparency settlements signal continued DOL enforcement: DOL enforcement actions and class-action settlements targeting excessive plan fees — particularly in 401(k)s — continued through 2024-2025. Notable settlements include a $13.7M settlement against a large plan for using high-cost retail share classes when institutional shares were available. Under 29 CFR § 2550.404a-5, plan fiduciaries must benchmark investment expenses annually; the safe harbor for fee selection is documented comparison of costs and services against similar plans. The "excessive fee" litigation wave under § 1132 has caused many plan sponsors to shift default investments to low-cost index funds and conduct annual fee benchmarking.