On April 14, 2026, the Employee Benefits Security Administration (“EBSA”) issued Field Assistance Bulletin (“FAB”) No. 2026-01. The new FAB outlines new governing principles regarding investigatory and enforcement priorities that EBSA investigators and staff must follow.

Employee stock ownership plan (“ESOP”) fiduciaries, sponsors, and service providers should be particularly interested in the new guidance, which rejects certain past practices that many in the ESOP space have long considered abusive. Those past practices included: 

1. The practice of “regulation by litigation,” or articulating policy positions held only by a select few within EBSA through lawsuits rather than by issuing regulations prospectively;
2. Conducting investigations that would last years and that DOL would never formally close;
3. Taking the position that ESOP fiduciaries were not held to a process-based standard; and
4. Sharing information with plaintiffs’ side class action lawyers via secret common interest agreements to facilitate private lawsuits against investigation targets. 

The new FAB ends these practices. Specifically, the FAB outlines the following guiding principles for investigations and enforcement actions related to employee benefits plans, including ESOPs:

1. EBSA will focus enforcement actions on the most egregious conduct and significant harm. These include criminal activity and loyalty, rather than prudence-based claims, because “the costliest breaches of the duty of prudence tend to be accompanied by concomitant loyalty breaches.” “To the extent any enforcement activity is solely based on a prudence breach, . . . EBSA must avoid cases that unfairly second-guess process-based fiduciary judgments” because “ERISA is a law of process and not results”;
2. EBSA will promote fairness and regulatory clarity by deemphasizing enforcement actions. Instead, it will direct policy by issuing proscriptive regulations after members of a regulated community have had an opportunity to comment;
3. Senior agency officials must be made aware of, and have the opportunity to be involved in, all critical investigatory and enforcement initiatives; and
4. EBSA will conduct enforcement activities, including investigations, “within a reasonable timeframe and . . . properly and respectfully.” As a general matter, “complex investigations must be completed within 30 months unless there are exigent circumstances.”

The FAB represents one part of a wider policy shift across both Congress and DOL. Congress, for example, has introduced legislation that would eliminate EBSA’s use of secret common interest agreements, effectively prevent EBSA from conducting endless investigations, and reverse the plaintiff-friendly pleading standard for prohibited transaction claims that the Supreme Court articulated in Cunningham v. Cornell University. DOL, for its part, has removed ESOPs from the national enforcement project list, proposed a safe harbor for alternative investment options in retirement plans, and will issue a proposed regulation interpreting “adequate consideration” (the exemption governing ESOP stock purchase transactions).