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.”

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.