September 07, 2023

Brad Campbell Comments on DOL’s New Fiduciary Rule in PLANSPONSOR and PLANADVISER

PLANSPONSOR and PLANADVISER spoke with benefits and executive compensation partner Brad Campbell on the proposed Advice and Consent Act by the Department of Labor (DOL) that would require acting Secretary of Labor Julie Su to step down.

Campbell explained that Su has been acting for 176 days of the 210-day maximum, according to the Federal Vacancies Reform Act of 1988. However, it is not clear if that rule applies to cabinet officials or if the 210-day stint does not start until a nomination is rejected or withdrawn. “Very clearly, what the White House seems to be doing is a violation of historical norms, but what is less clear is what law it is a violation of,” he said.

Campbell noted, “Any [action] that the department takes, someone can raise the objection that [Su] isn’t the valid secretary. It’s unclear how courts would proceed with that. But if you’re going to challenge the rule, you would make every plausible challenge.”

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