ERISA Allows Plan Fiduciaries to Pursue More Than Just Money

In this note, my first since retiring from the Department of Labor five months ago, I would like to think out loud about three policies that provide exceptions to ERISA’s primary fiduciary duties of loyalty and prudence (ERISA §404(a)(1)(A) and (B)) with regard to tax-subsidized plan assets. These policies relate to:

1. ESOPs, which were added to ERISA to promote employee stock ownership and control (ERISA §407(d)(6)(A) describes ESOPs as plans “designed to invest primarily in qualifying employer securities”);
2. ESG, recently incorporated into the latest DOL fiduciary regulation (87 Fed. Reg. 73,822 (Dec. 1, 2022)