The Employee Benefits Security Administration (EBSA) enforces ERISA laws and regulations, including conducting civil and criminal investigations. EBSA enforcement of ERISA laws often results in recovering money from enforcement actions, voluntary fiduciary correction programs, abandoned plan programs, and informal complaint resolution. Enforcement statistics from 2018 and the Department of Labor (DOL) strategic plan for the future provide some insights on enforcement for 2019.

EBSA Enforcement Statistics from Fiscal Year 2018

The EBSA 2018 fact sheet shows the department recovered over $1.6 billion in fiscal year 2018. Including the following recoveries:

EBSA closed 1,329 civil investigations in 2018 with over 64% of those cases resulting in monetary recovery for the plan or other corrective action. The largest share of these recoveries was on behalf of terminated vested plan participants (recovering over $800 million in total for terminated vested participants).

When voluntary compliance was not available or efforts failed, EBSA refers cases for litigation. In 2018, 111 civil investigations were referred to litigation. Civil ERISA litigation in EBSA investigations remains relatively rare, as this represents less than 1% of civil investigations closed in 2018 since plan fiduciaries typically opt to enter into voluntary settlements with EBSA once its investigation finding is completed and the violation of law is clear on its face.

EBSA also closed 268 criminal investigations in 2018. The criminal enforcement under ERISA included indictments against 142 individuals, resulting in 87 individuals being convicted or pleading guilty. This included plan officials, corporate officers, and service providers.

Over 500 investigations were opened as the result of inquiries and informal complaints. EBSA closed more than 170,000 inquiries made by plan participants, beneficiaries, and employees. Repeated inquiries and complaints or complaints that may indicate a fiduciary breach are referred for investigation.

DOL's Strategic Plan

The Secretary of Labor, R. Alexander Acosta, issued the department's Strategic Plan for Fiscal Years 2018-2022. This included EBSA's strategic objective to:

• Leverage strategic enforcement;
• Strengthen compliance assistance, consumer outreach, and education; and
• Promote high-quality regulatory and research activities.

EBSA objectives continue to include going after unjust profits and recovering losses from fiduciary breaches and plan provider misconduct. EBSA investigations are to be targeted using data analysis, prompt pursuit of violations, monetary recovery, and investigation of plan participant tips and complaints.

As part of more targeted enforcement, the DOL seeks to increase efficiency based on three performance measures, which include the following targets:

• $16,936 in major case recoveries per major case staff day;
• $30,737 in monetary recoveries on major cases closed per staff day; and
• 70% of delinquent employee contribution, abandoned plan, and other reporting and disclosure breach cases closed or referred within 18 months of case opening.

Larger plan providers may be more likely to be targeted for enforcement. The Major Case initiative is intended to obtain the maximum benefit based on the limited EBSA resources and have an impact on a greater number of plans and plan participants.

San Diego ERISA Law Firm

If you have any questions about ERISA violations, EBSA/DOL investigations, and potential enforcement actions, the law firm of Butterfield Schechter LLP is here to help. We are San Diego County's largest law firm focusing its law practice on employee benefits law. Contact our office today with any questions on how we can help you and your business succeed.