Introduction
The fiduciary standards in the Employee Retirement Income Security Act of 1974 (ERISA; P.L. 93-406, as amended) require that individuals who make decisions for private-sector pension plans (referred to as fiduciaries) adhere to specified standards of conduct. The standards include an obligation to act prudently and for the exclusive purpose of providing benefits to participants and beneficiaries. Among those who are fiduciaries are individuals who choose plan investments. The standards apply to defined benefit (DB) plans, in which retirees usually receive monthly payments (sometimes referred to as a traditional pension) and defined contribution (DC) plans, in which participants have individual accounts (like a 401(k) plan).
Over the years, investors—including pension plan sponsors and participants—have taken an interest in investment features beyond the standard risk and return relationship. Examples of such investments include those that consider the effects of climate change (e.g., preferring renewable energy companies to fossil fuel companies), a firm's supply chain practices (e.g., ensuring that seafood is not caught with forced labor), faith-based approaches (e.g., investing based on the Bible or Sharia law), or corporate governance structures (e.g., considering the diversity of a corporation's board of directors). These investments have been referred to with various names, such as economically targeted investments; socially responsible investments; and environmental, social, and governance (ESG) investing. Policymakers' opinions vary as to the appropriateness of these types of investments within pension plans. Some Members of Congress are interested in facilitating these investments; others are interested in limiting them.
Earlier DOL Guidance
In 1994, 2008, and 2015 the Department of Labor (DOL) issued guidance in the form of Interpretive Bulletins and, in 2018, a Field Assistance Bulletin, on the extent to which pension plan fiduciaries can consider factors beyond an investment's risk and return relationship. The guidance generally emphasized that investment decisions must be made with the objective to provide economic benefits to plan participants. The guidance also described scenarios in which consideration of investments that have goals beyond providing income to participants could be consistent with a fiduciary's duties. For example, if a plan found that two investments were equal on an economic basis, then the plan could—but would not be required to—choose based on noneconomic factors. DOL, in Interpretive Bulletin (IB) 2015-01, construed that ERISA prohibits "a fiduciary from subordinating the interests of participants and beneficiaries in their retirement income to unrelated objectives."
November 2020 Regulation
On November 13, 2020, under the Trump Administration, DOL issued a final rule relating to the selection of investments by a pension plan fiduciary. The DOL rule said that the evaluation of an investment by a pension plan fiduciary must be based on economic factors only—what the regulation called pecuniary factors—and that a pension plan could not subordinate the interests of participants and their retirement income to non-pecuniary objectives.
The regulation defined a pecuniary factor as "a factor that a fiduciary prudently determines is expected to have a material effect on the risk and/or return of an investment based on appropriate investment horizons consistent with the plan's investment objectives and the funding policy established pursuant to section 402(b)(1) of ERISA." The fiduciary could use non-pecuniary factors in instances where the fiduciary was unable to choose based on pecuniary factors alone, though DOL noted that such situations would be "rare." DOL referred to this as a tie-breaker scenario. If a plan made a tie-breaker decision based on non-pecuniary factors, the regulation required that the plan document its decisionmaking process.
The regulation specifically addressed participant-directed individual account plans: DC plans in which individuals choose their investments from options provided by the plan sponsor. It noted that these plans were not prohibited from including an investment option that supported non-pecuniary goals, provided that (1) fiduciary duties were followed; (2) the investment decision was based on pecuniary factors; and (3) if non-pecuniary factors were used to choose among investments selected using pecuniary factors, the decisionmaking process was documented.
The regulation explicitly prohibited an investment that supported non-pecuniary goals from being included as part of a Qualified Default Investment Alternative (QDIA), which is an investment alternative used in DC plans with automatic enrollment features. Participants who are automatically enrolled in DC plans and who do not make a choice about their accounts' investments have their contributions placed in a QDIA. Target Date Funds (TDFs), which change the investment mix between equities and bonds as an individual approaches retirement, are commonly used as QDIAs.
On March 10, 2021, under the Biden Administration, DOL announced that it would not enforce the November 2020 final rule or pursue enforcement actions and that it intended to revisit the rule in the future.
December 2022 Regulation
On December 1, 2022, under the Biden Administration, DOL issued a final rule that it said would clarify the application of fiduciary duty when selecting plan investments. DOL said that the November 2020 regulation had a "chilling effect and other potential negative consequences" on the appropriate use of ESG factors in investment decisions in pension plans. The final rule also addressed proxy voting and the exercise of shareholder rights that were the subject of a separate regulation in 2020. These are discussed in CRS In Focus IF12362, Department of Labor Guidance and Regulations on the Exercise of Shareholder Rights by Private-Sector Pension Plans. The final rule became effective on January 30, 2023.
Among other things, DOL noted the final rule
DOL indicated that if accommodating participants' preferences led to greater participation and higher deferral rates then it could lead to greater retirement security. DOL indicated that giving consideration to whether an investment option aligns with participants' preferences can be relevant to furthering the purposes of the plan.
Response to DOL December 2022 Regulation
On January 26, 2023, a coalition of 25 states filed suit to block the rule saying that DOL overstepped its authority under ERISA to issue the rule.
In the 118th Congress, H.J.Res. 30, which would use the Congressional Review Act (CRA; enacted in P.L. 104-121) to nullify the 2022 regulation, was passed by the House and Senate, and vetoed by President Biden on March 20, 2023. The House failed to override the veto.
For More Information
CRS In Focus IF11716, Introduction to Financial Services: Environmental, Social, and Governance (ESG) Issues.
Employee Benefits Security Administration (EBSA), "Interpretive Bulletin Relating to Economically Targeted Investments," 73 Federal Register 61734 - 61736, October 17, 2008, https://www.govinfo.gov/content/pkg/FR-2008-10-17/pdf/E8-24551.pdf.
EBSA, "Interpretive Bulletin Relating to the Fiduciary Standard Under ERISA in Considering Economically Targeted Investments," 80 Federal Register 65135 - 61736, October 26, 2015, https://www.govinfo.gov/content/pkg/FR-2015-10-26/pdf/2015-27146.pdf.
EBSA, "Financial Factors in Selecting Plan Investments," 85 Federal Register 72846 - 72885, November 13, 2020, https://www.govinfo.gov/content/pkg/FR-2020-11-13/pdf/2020-24515.pdf.
EBSA, "Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights," 87 Federal Register 73822 – 73886, December 1, 2022, https://www.govinfo.gov/content/pkg/FR-2022-12-01/pdf/2022-25783.pdf.