PSNC 2020: Preston Rutledge’s Inside View of the DOL

As the nation’s top retirement and health plan regulator, Preston Rutledge oversaw an agency of more than 800 employee benefits professionals in offices throughout the United States.

Day three of the 2020 PLANSPONSOR National Conference featured a virtual keynote address from Preston Rutledge, the former assistant secretary of labor for the Employee Benefits Security Administration (EBSA) at the U.S. Department of Labor (DOL).

During the address, Rutledge fondly recalled his work as the nation’s top pension regulator, a role that involved oversight of an agency with more than 800 employee benefits professionals located in Washington, D.C., and in 13 regional offices throughout the United States.

Rutledge shared details about what it was like drafting and publishing guidance to implement new retirement, health and workplace benefits policies, including rules governing association retirement plans, permitting the default electronic disclosure of plan information and more. Rutledge, who left his role as EBSA head on May 31, also led agency’s initial response to the COVID-19 pandemic.

While his comments about his past work within the EBSA were interesting in their own right, the most important part of Rutledge’s address involved his explanation of just how critical the public comment period is from the agency’s perspective as it tries to craft and finalize regulations. 

“If I could just emphasize one thing from my time working inside the EBSA, it is that the public comments are viewed as being incredibly important,” Rutledge said. “I would encourage everyone who has considered submitting comments on a proposed or final rule to do so—and to take the effort seriously. Almost every regulatory project I have ever worked on has taken something useful out of the public comments. I can assure you, your comments really do matter.”

As a case in point, Rutledge pointed to the fact that public comments led to the creation of a second safe harbor that was included in the final electronic default disclosure rule recently adopted by the EBSA. Commenters told the EBSA that they would like to be able to use both dynamic websites as well as static PDF documents in their default disclosures, and the final rule accommodates that. The final rule also was modified, based on public comments, to establish that participants must be defaulted back into paper disclosures if their email address bounces back and the issue cannot be quickly corrected.

“The employers told us they wanted this balance, and we agreed with them,” Rutledge recalled. “Even when we get thousands of comments, the career staff goes to work and takes them all seriously.”

Though he can only speculate, given that he is no longer an insider, Rutledge said the EBSA staff is certainly right now engaged in digesting the more than 1,000 comments submitted with respect to the proposed rule regarding environmental, social and governance (ESG) investing within retirement plans covered by the Employee Retirement Income Security Act (ERISA).

“Of course, I cannot say what the outcome will be, but I am sure these comments are being carefully reviewed,” Rutledge said.

Looking forward, Rutledge encouraged the plan sponsors in the audience to be on the lookout for guidance and rulemaking related to the Setting Every Community Up for Retirement Enhancement (SECURE) Act.

“The SECURE Act regulations are also beginning to come out, so please do watch for those and get engaged during the comment period,” he said. “Whether it’s the lifetime income disclosure provision or the pooled plan provider rules, you should get involved.”