EBSA Reorganization May Bring Positive Changes

Industry sources speculate that the DOL's new structure for its Employee Benefits Security Administration will result in more guidance and fairer enforcement.

Senator Patty Murray, D-Washington, ranking member of the Senate Committee on Health, Education, Labor and Pensions (HELP), seems up-in-arms about the reorganization of the Department of Labor’s Employee Benefits Security Administration (EBSA) that went into effect October 1.

Prior to the reorganization, she sent a letter to Assistant Secretary Preston Rutledge asking him to hold off on the shuffle and requesting answers to more than a dozen questions, as well as documentation of an implementation plan. When the reorganization went into effect, she followed up with a letter saying the agency’s response was “woefully inadequate and unresponsive.” She also stated, “The lack of an adequate response … deepens my concern around the impact it could have on the workers, retirees, and families who turn to EBSA for help with the benefits they rely on.”

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So what’s the big deal?

First of all, according to Michael Kreps, attorney with Groom Law Group in Washington, D.C., as ranking member of the HELP committee, which oversees the DOL, Murray takes that oversight seriously and has “an instinctual interest” in having a better understanding of how the DOL, and particularly the EBSA, operates. “It’s pretty common for folks in senior positions in Congress to inquire about major developments in agencies they oversee,” he says. He points out that lawmakers did the same thing when the Wage and Hour division reorganized in August.

The proposed reorganization appears to be a meaningful structural change from the status quo, shifting some authorities to EBSA’s politically appointed deputy and creating a new director position to oversee regional offices.

Rutledge, a political appointee, oversees the EBSA. Previously, Timothy D. Hauser, a career EBSA staff member was over all operations—national and regional; however, the reorganization has split his position, making him Deputy Assistant Secretary for National Office Operations and naming Amy J. Turner the Deputy Assistant Secretary for Regional Office Operations, another career position.

Kreps explains that the reorganization has also revised the reporting structure so some policy-heavy offices report to Principal Deputy Assistant Secretary Jeanne Klinefelter Wilson, a political appointee.

From conversations in the industry, Hauser has a reputation for being very supportive of a more employee-favorable agenda, although he is seen as a balanced person. So, it could be that Murray is concerned that political people are asserting themselves and trying to limit the extent of Hauser’s role—which could be problematic for people opposed to the current administration. The national office is more employer friendly, so some may see the reorganization as trying to reign in those from field offices that may be giving employers a hard time.

However, from conversations and news reports, that is not how the majority view it.

A positive change

According to Kreps, it appears at the EBSA that a lot of policy issues are run through the second most senior person at the agency. Previously, that was Hauser, but now it is Wilson, a political official. He says there is a justification that when the EBSA makes a policy decision, it should be made by part of the political structure in the administration. “The reorganization seems more about aligning policy decisions and running them all through central political officials,” Kreps says.

He notes that the DOL has historically issued a lot of sub-regulatory guidance—for example, advisory opinions to explain its views. But, Kreps says, starting in the Obama administration and flowing into the Trump administration there has been a shift from sub-regulatory guidance to focusing on large regulatory projects—the fiduciary rule under Obama, and association retirement plans under Trump. “There have been some public statements by DOL officials that they would like to help the industry by issuing more guidance and opening up a process that has been dormant for a while.”

As for the new structure to have someone higher up coordinate the field offices—coordinate the regional offices at a national level—Kreps says it seems important that the EBSA wants to offer consistency. “The EBSA wants to treat similarly situated stakeholders in the same way and make sure the benefits community has rules of the road that are the same for all,” he says. “It also helps the national office have a better sense of what is going on in the field and better process information that is coming in.”

The retirement plan community may see more fairness, as well as guidance, from the reorganization.

“We have a group that works a lot with the EBSA and they deal with some of the most important issues out there, so we are hopeful that [the agency will] be able to engage with the broader community to make positive changes going forward both on the participant and plan sponsor/provider side,” Kreps concludes.

Will GOP Senators’ Letter Win Floor Time for Popular SECURE Act?

An open letter penned by a team of senior Republican Senators calls on Senate Majority Leader Mitch McConnell to bring the bipartisan SECURE Act over the legislative finish line.

Senate Majority Leader Mitch McConnell is being pressured by Senators on both sides of the political aisle to take action on the Setting Every Community Up for Retirement Enhancement Act, commonly referred to as the “SECURE Act.”

The popular bipartisan bill passed the House earlier this year with a practically unanimous vote, but it has since been stalled in the Senate. In recent months, advocates have voiced hopes that the SECURE Act’s key provisions—for example supporting the establishment of open multiple employer plans and setting up an in-plan guaranteed income product selection safe harbor for retirement plan sponsors—could be folded into budget negotiations at the end of the year.

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Sources tell PLANADVISER the SECURE Act’s holdup is more logistical than substantial. That is to say, with the GOP’s clear focus on making appointments to the judicial branch, there is actually a great premium on floor time for the remainder of this year. That’s why the Senate leadership initially pushed first for the SECURE Act’s passage under a loophole known as “unanimous consent.” In short, if a bill enjoys unanimous consent among every Senator, it doesn’t require any floor time. At this juncture, it appears three GOP Senators are refusing to allow the bill’s passage under unanimous consent: Ted Cruz, Mike Lee and Pat Toomey. Senator Cruz has concerns about certain 529 college savings plan provisions. Senator Lee has concerns about a provision that provides some relief for small community newspapers. And Senator Toomey has primarily voiced concerns about certain technical tax corrections that impacts retailers, which he wants to see addressed through floor debate and amendment.

Sources say none of the leadership in the Senate or the House opposes moving this bill in its current form into law. Nonetheless, this week, a group of seven prominent Republican senators took the step of mailing an open letter to Leader McConnell, publicly pressing him to work to get the SECURE Act passed into law this year. Signers of the letter include Republican Senators Tim Scott, Rob Portman, Thom Tillis, Joni Ernst, Martha McSally, Susan Collins and Cory Gardner.

“This bipartisan legislation would expand access to retirement plans for millions of Americans, especially those working for small businesses,” the letter states. “It would allow older workers and retirees to contribute more to their retirement accounts. It would increase 401(k) coverage to part-time employees. It would prevent as many as 4 million people in private-sector pension plans from losing future benefits for which they have worked and planned. The legislation would protect 1,400 religiously affiliated organizations whose access to their defined contribution retirement plans is in jeopardy. The SECURE Act also does the right thing for Gold Star families. It would correct unfair tax treatment of the survivor benefits of more 18,000 children and spouses of fallen service members.”

The Senators further emphasize SECURE Act provisions aim to help new parents, including those adopting, with expenses by allowing tax-free distributions of retirement savings.

“This legislation builds on the Senate’s version of the bill, the Retirement Enhancement and Savings Act (RESA), sponsored by our colleagues Senator [Chuck] Grassley and Senator [Ron] Wyden,” the letter states. “During the 114th Congress, RESA was approved unanimously by the Finance Committee. We encourage the Senate to take action on the SECURE Act as soon as possible. Doing so would demonstrate to our constituents that the Senate can lead in a bipartisan way for workers saving for retirement, for tax fairness and for family financial security.”

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