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In April 2025, Republican members of the House Education and Workforce Committee introduced legislation requiring DOL to: (1) report on open employee plan audits and explain why any audits open for more than 36 months have not been closed; and (2) provide detailed disclosure and an explanation of the rationale for “adverse assistance” DOL is providing to plaintiffs lawyers targeting plan sponsors and fiduciaries.
In this note we briefly review the two bills.
EBSA Investigations Transparency Act (H.R. 2869)
Representative McClain (R-MI) has introduced a bill, the EBSA Investigations Transparency Act (H.R. 2869), that would require DOL reporting on the status of its open employer plan audit projects. The report would, among other things, require identification of plan audits that have been open for more than 36 months, including “information on why such investigation has not been concluded; and … the estimated date of conclusion.”
The relatively high percentage of DOL plan audits that are still open after three years has been a focus of House Republicans, who have identified concerns that, e.g., “investigators [are] often replaced several times,” and reports by plan sponsors that “there often appears to be no direction or purpose to investigations.” (See our article House Republicans “conducting oversight” of DOL audit process.)
Transparency for Secret Litigation Agreements (H.R. 2958)
Representative Rulli (R-OH) has introduced a bill, the Transparency for Secret Litigation Agreements Act (H.R. 2958), that would require DOL to formalize and disclose situations in which it is providing “adverse assistance” – essentially, assistance to plaintiffs lawyers suing sponsors and fiduciaries of ERISA employee benefit plans.
This legislation is in response to reports that DOL has been cooperating with certain plaintiffs attorneys in litigation targeting plan sponsors and fiduciaries.
Under the bill –
“Adverse assistance” is defined as: “assistance or advice, including the disclosure of information [DOL obtains from required reports or through its investigative authority], that is directed specifically toward an attorney for potential use in a civil action under [ERISA].”
Where adverse assistance is being provided, DOL must:
Enter into a written agreement detailing the nature and scope of the assistance.
Provide a copy of the agreement to “any employer, plan sponsor, or fiduciary that may be directly and adversely impacted by such assistance.”
DOL would also have to provide an annual report containing detailed information on all adverse assistance agreements for the prior year, including (among other things) “a detailed description of the nature and scope of the assistance provided,” including the information shared, detailed logs of “verbal communications,” detailed logs of meetings, and “an explanation of how such agreement is consistent with the public policy of promoting the voluntary sponsorship of employee benefit plans.”
The bill would also amend section 2 of ERISA to include the following declaration of support for the voluntary private retirement system:
Congress finds that the retirement security of millions of employees and their dependents is directly impacted by the voluntary sponsorship and maintenance of pension plans. It is hereby declared to be a policy of this Act to promote, encourage, and facilitate the voluntary establishment and maintenance of, and contribution to, such plans.
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This legislation is seen as part of a broader ERISA litigation reform project being discussed among policymakers and industry advocates.
We will continue to follow this issue.