House Dems Introduce SECURE 3.0 Bills on ERISA Legal Issues, Fiduciary Definition

Discussions of a potential SECURE 3.0 percolated in the House of Representatives this week, when two ranking committee members introduced a trio of bills addressing retirement plan participants’ standing to sue, the definition of “fiduciary” and mandatory arbitration clauses. 

During a pro forma session on Thursday, Representative Bobby Scott, D-Virginia, a ranking member of the House Committee on Education and the Workforce, and Representative Mark DeSaulnier, D-California, a ranking member of the House Health, Education, Labor and Pensions Subcommittee; made their bid for the third iteration of the landmark Setting Every Community Up for Retirement Enhancement Act. 

“We must reverse course and advance an agenda that protects workers’ retirement savings and strengthens their ability to enforce their rights under ERISA,” Scott said in a statement. “If Congress considers a ‘SECURE 3.0’ retirement bill in the future, these pro-worker bills must be included.”  

Definition of ‘Fiduciary’  

Sponsored and introduced by Scott, the Workers Retirement Savings Protection Act of 2026 would define a “fiduciary” as an individual who, for a fee, renders advice or makes any recommendations as to investments, including rolling over assets. 

Under the Employee Retirement Income Security Act, as it stands, the “fiduciary” designation applies to advisers who render investment advice for a fee or other compensation, direct or indirect. The new legislation would specify that such fees or other compensation include a broad range of payments from any source, including commissions, among other forms of payment connected with, or the result of, an adviser’s recommendation. 

According to a release from Scott’s office, the legislation is endorsed by multiple unions, such as the AFL-CIO, Alliance for Retired Americans, and the American Federation of State, County and Municipal Employees. 

Standing to Sue 

Scott also introduced and sponsored the Protecting Workers Benefits Act of 2026, which would codify a rejoinder to the Supreme Court’s decision in Thole v. U.S. Bank, which held that participants in a defined benefit plan did not have standing to sue plan fiduciaries for a breach of fiduciary duty because they did not suffer any individual financial losses.  

The legislation would allow individuals to bring an action as assignees on behalf of their plan, similar to actions brought by whistleblowers under the False Claims Act. 

DeSaulnier said the three-bill package would hold employers to higher standards. 

“This legislation … would help safeguard the promise of ERISA so that workers can retire with financial security and dignity by cracking down on employer abuses and protecting workers’ access to recourse under the law,” DeSaulnier said in a statement. 

‘Access to Justice’ 

DeSaulnier sponsored and introduced the Employee and Retiree Access to Justice Act of 2026 to ban mandatory arbitration clauses, class action waivers, representation waivers and certain discretionary clauses under certain ERISA plans. 

Mandatory arbitration clauses require participants to resolve disputes with the plan or the employer through arbitration, rather than the legal system. Many plan sponsors add arbitration provisions, often combined with class action waivers, to their ERISA plans to limit litigation costs. The Department of Labor reported that in 2023, more than 60 million workers were subject to mandatory arbitration. 

The Employee and Retirement Access to Justice Act is a companion bill to a similar measure introduced in the Senate on Wednesday by Senator Tina Smith, D-Minnesota. A similar bill was introduced by DeSaulnier in May 2022 as part of the Mental Health Matters Act. In 2024, DeSaulnier and Smith introduced the Employee and Retiree Access to Justice Act of 2024 in their respective chambers. 

The Supreme Court in November 2024 declined to consider—for the fifth time since 2019—whether complaints under ERISA may be addressed by arbitration. 

“Too often, employers can deny workers the right to appeal a claim denial in court or impose huge burdens that make it nearly impossible to win a suit for wrongly denied benefits,” Smith said in a statement supporting DeSaulnier’s new bill. “The Employee and Retiree Access to Justice Act would put the power back in the hands of workers by clarifying their right to take their bosses to court if they aren’t being paid what they’re owed.” 

The House version of the bill has been referred to the Committee on Education and the Workforce.