What Did the DOL Just “Rollover” (and Roll Out)? – “A Primary Basis” for Understanding the New Proposed ERISA Exemption and Related Guidance

The U.S. Department of Labor (the “DOL”) on June 29, 2020 issued a release (the “Release”) proposing an important new initiative for retirement accounts (“Plans”) that are subject to the Employee Retirement Income Security Act of 1974 (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986 (the “Code”). The Release continues the decade-long saga that began with the DOL's highly controversial effort to remake its 1975 regulation (the “1975 Rule”) defining what constitutes “investment advice” for purposes of the fiduciary rules under ERISA and Section 4975 of the Code, which many saw as dramatically extending ERISA's reach, even affecting the way financial-services organizations conducted their general (non-ERISA) business. As discussed in greater detail in the attached OnPoint, the Release:

• Reinstates the 1975 Rule.  
• Provides important interpretive guidance regarding the 1975 Rule’s “five-part test” generally.   
• Changes the way that rollover-related advice is viewed by the DOL under the fiduciary rules.  
• Proposes a new exemption for commission-based and variable compensation business models embracing fiduciary status.  
• Confirms that a key existing temporary enforcement policy remains in place.
• Reinstates 1996 investment education guidance.

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