The Department of Labor (DOL) Employee Benefits Security Administration (EBSA) recently released Field Assistance Bulletin 2026-01 and Technical Release 2026-01. See below for more information.

Field Assistance Bulletin (FAB) 2026-01 serves to update and clarify the EBSA’s enforcement priorities and guiding principles. As outlined in the bulletin, “the priorities and principles are designed to ensure that EBSA’s enforcement is fair, even-handed, responsive, and focused.” The guiding principles are outlined as follows:

1. EBSA will prioritize investigations evidencing the most egregious conduct or significant harm.
2. Consistent with the principles of fairness, EBSA will not regulate through enforcement whenever possible.
3. To ensure that EBSA is meeting its enforcement priorities and guidelines, and to ensure consistency of enforcement across all regions, all proposed significant enforcement activities must be reviewed by EBSA’s leadership.
4. EBSA’s enforcement must be responsive and timely.

FAB 2026-01 shifts enforcement focus to be in line with the updated principles. Civil enforcement cases will focus on making “the most significant difference in addressing harm to plan participants and beneficiaries – particularly when there is direct evidence of disloyalty or impermissible conflicts of interest.” The FAB is described as an internal DOL policy “directed at EBSA and its employees”.

EBSA Technical Release 2026-01 (the Release) provides guidance to plan administrators and other fiduciaries (subject to the Employee Retirement Income Security Act (ERISA) of 1974) that rely on proxy advisory services and addresses how ERISA interacts with certain state laws regulating proxy advisory services.

ERISA imposes certain requirements on fiduciaries of retirement plans. Under ERISA, fiduciaries have a duty to act prudently, loyally, and solely in the interest of plan participants and beneficiaries. In 1975, the DOL provided a five-part test to determine whether a financial representative provides fiduciary investment advice. The DOL has long held that fiduciary duty includes the management of shareholder rights, including the right to vote proxies, as part of managing plan assets.

As defined in the Release,

• Proxy voting refers to the practice of casting ballots on behalf of those shareholders of a corporation who may not attend shareholder meetings in person to exercise voting rights appurtenant to their shares, and
• Proxy advisory firms may provide advice or recommendations for a fee to shareholders to help inform decisions about how to vote regarding proposals and other issues decided at shareholder meetings, and, in certain cases, may exercise discretion over the disposition of proxy votes by actually casting votes on behalf of clients.

As outlined in its news release, the DOL states in the Release that proxy advisors regularly engage in conduct that makes them investment advice fiduciaries under the five-part test described above.

The Release states that proxy advisory firms must meet ERISA’s functional fiduciary requirements when they:

1. Exercise authority or control over shareholder rights attributable to shares that are ERISA plan assets, including the voting of proxies; or
2. Provide advice for a fee to ERISA plans about how such plans should exercise voting rights attributable to shares of stocks they own where the advice provided is on an ongoing basis, pursuant to a mutual understanding, and is relied upon as a primary basis for the plan’s voting decisions.

The Release states that shareholder rights, including the ability to vote proxies attributable to shares held by ERISA-governed employee benefit plans, are plan assets, and the management of these rights are subject to ERISA’s fiduciary duties, including the duty of loyalty. In addition, proxy voting decisions should be based solely on the factors that affect the economic value of the plan’s investment.

In addition to fiduciary status, the Release addresses the interaction with ERISA’s preemption provision. State laws may require proxy advisory firms to provide disclosures when their recommendations are based on non-financial objectives. While this state disclosure law may not be overridden by ERISA, any proxy advisory firm acting as an ERISA fiduciary or plan fiduciary relying on a recommendation must still follow ERISA’s fiduciary duties.