Brad Campbell Comments on EBSA’s Most Significant Retirement Actions under the Trump Administration

In the article “DOL Benefits Arm Pumps Out Spate Of Regs In 2020,” Law360 recaps the Employee Benefits Security Administration (EBSA)’s most significant regulations since President Donald Trump took office. The legal industry publication turned to benefits and executive compensation partner Brad Campbell for insight on the retirement actions made by EBSA during the Trump administration.

According to Campbell, the year Trump took office, EBSA primarily concerned itself with efforts to modify the Obama administration’s so-called fiduciary rule, which had largely banned financial professionals from recommending commission-generating products unless they agreed to act in clients’ best interests.

EBSA worked extensively on that rule — extending its deadline, reviewing it, modifying it — until the Fifth Circuit struck it down in 2018, Campbell said. Only after that point did other priorities start to take center stage, though the fiduciary rule has remained a concern throughout Trump’s presidency.

“I think EBSA has produced fewer regulations and guidance documents than we would have anticipated. The majority of their actions have occurred this year,” Campbell noted. “Much of their first year in office was spent trying to address the fiduciary rule.”

Campbell highlighted that in the spring of 2020, EBSA turned its focus to retirement policy, calling it EBSA’s “most productive period of the Trump administration.” Law360 noted that the agency pushed out a series of notable retirement policies over the past five months, including allowing companies to email workers’ retirement plan documents, allowing workers to see their retirement savings in monthly installments, restricting the use of socially conscious investments in retirement plans, and replacing the fiduciary rule with its 1975 predecessor, which established a five-part test to determine if an investment adviser is a fiduciary.

Campbell added that the future of some of the recent policies – such as parts of the fiduciary rule – remain uncertain, as any rules not finalized by the end of November could be easy for a Democratic administration to wipe away.