ERISA attorney, and author, speaker and commentator on retirement issues; co-host of the Nevin&Fred podcast
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Articles by Fred Reish
Changing 401(k) Recordkeepers: Cost, Service, and Investment Considerations
One of the responsibilities of fiduciaries of 401(k) plans — typically committee members — is to select and monitor the plan's service providers, such as the plan adviser and recordkeeper. When making those decisions, fiduciaries are required under ERISA to act prudently and loyally. From time to time, though, fiduciaries may consider changing recordkeepers, perhaps because of dissatisfaction with the incumbent recordkeeper or simply because of a recommendation of another recordkeeper.
Yes, Annuities Can Be Part of a QDIA, Despite What You’ve Read
When Congress expressly authorized automatic enrollment in 401(k) plans in 2006, it also laid the foundation for “safe” investments for newly enrolled participants who failed to select investments for their accounts. That failure is called a “default,” and it effectively forces plan fiduciaries to make the investment decision for defaulting participants.
ERISA Moments Ep. 32: The 2024 Election and What it Means for Retirement Policy
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, Headlines vs. Reality: Here’s What the Executive Order on Alternative Assets in DC Plans Actually Says, below.
ERISA Moments Ep. 32: The 2024 Election and What it Means for Retirement Policy
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, Headlines vs. Reality: Here’s What the Executive Order on Alternative Assets in DC Plans Actually Says, below.
ERISA Moments Ep. 32: Headlines vs. Reality: Here’s What the Executive Order on Alternative Assets in DC Plans Actually Says
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, Headlines vs. Reality: Here’s What the Executive Order on Alternative Assets in DC Plans Actually Says, below.
Things I Worry About (26): Pooled Employer Plans and DOL RFI (7)
The DOL has issued guidance about PEPs—pooled employer plans—that includes questions designed to assist the DOL in developing future guidance about PEPs. Some of those questions suggest a possible fiduciary safe harbor for small employers who adopt PEPs. This article continues a discussion of the questions asked by the DOL and my comments on those questions and issues. In particular, this article covers some of the “safe harbor” questions raised by the DOL.
Things I Worry About (25): Pooled Employer Plans and DOL RFI (6)
The DOL has issued guidance about PEPs—pooled employer plans—that includes questions designed to assist the DOL in developing future guidance about PEPs. Some of those questions suggest a possible fiduciary safe harbor for small employers who adopt PEPs. This article begins a discussion of the questions asked by the DOL and my comments on those questions and issues. In particular, this article covers some of the “safe harbor” inquiries.
Things I Worry About (24): Pooled Employer Plans and DOL RFI (5)
The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and that suggests a possible fiduciary safe harbor for small employers who adopt PEPs. This article continues a discussion of the questions that the DOL says that employers should ask when considering adopting a PEP for their employees.
Things I Worry About (22): Pooled Employer Plans and DOL RFI (3)
The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and a possible fiduciary safe harbor for small employers who adopt PEPs. This article begins a discussion of the questions that the DOL says that employers should ask when considering adopting a PEP for their employees.
Things I Worry About (21): Pooled Employer Plans and DOL RFI (2)
The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and a possible fiduciary safe harbor for small employers who adopt PEPs. In addition, the preamble to the guidance includes some interesting information about the development of PEPs. That information includes data about the successes of PEPs and also some considerations for evaluating PEPs. This series of articles examines the DOL’s July 29, 2025 release that...
Things I Worry About (20): Pooled Employer Plans and DOL RFI (1)
The DOL has issued guidance about PEPs—pooled employer plans—that provides tips for adopting employers and questions about PEPs and a possible fiduciary safe harbor for small employers who adopt PEPs. In addition, the preamble to the guidance includes some interesting information about the development of PEPs. This series of articles examines the DOL’s July 29, 2025 release that includes interpretative guidance on PEPs, solicits information about PEP practices, includes tips for selecting...
Things I Worry About (19): Executive Orders, Private Funds, and Fiduciary Standards (5)
The Trump administration has issued an Executive Order about facilitating 401(k) investments in “alternative assets,” which includes private funds. The Order directs the Secretary of Labor to examine current guidance and decide if it is appropriate for that purpose.
Things I Worry About (18): Executive Orders, Private Funds, and Fiduciary Standards (4)
The Trump administration has issued an Executive Order about facilitating 401(k) investments in “alternative assets,” which includes private funds. The Order directs the Secretary of Labor to examine current guidance and decide if it is appropriate for that purpose.
Things I Worry About (17): Executive Orders, Private Funds, and Fiduciary Standards (3)
The Trump administration has issued an Executive Order about facilitating 401(k) investments in “alternative assets.” The Order directs the Secretary of Labor to examine current guidance and decide if it is appropriate for that purpose. The Order also directs the Secretary of Labor to issue guidance to clarify fiduciary responsibilities for 401(k) investing in alternative assets and to consider providing fiduciary guidance.
How Employers Can Build, Document Defensible Health Plan Fiduciary Processes
In this final part of the three-part series, we turn to the practical aspects of disclosures, focusing on how employers can build and document a defensible fiduciary process that meets ERISA’s standards, mitigates risk, and enhances health plan oversight.
Things I Worry About (16): Executive Orders, Private Funds, and Fiduciary Standards (2)
My last post, Things I Worry About (15), was an overview of the Trump administration’s Executive Order about facilitating investing in “alternative assets” in 401(k) plans. The article was my reading of the EO and my thoughts on what it meant. For this post, I turned to ChatGPT and asked it to summarize the EO. This article is ChatGPT’s view of the order, not mine (or my firm’s). This article about the Executive Order on Alternative Assets was written by ChatGPT.
Health Plan Compliance: What Employer Fiduciaries MUST Know
In the first part of our series, we explored the often-overlooked fiduciary responsibilities employers have when sponsoring health care plans — and how two key legal developments have raised the stakes. In the second part, we’ll continue exploring the impact of these developments on employers and what they need to know to stay compliant and protected. If a benefits broker or consultant is covered by the CSP definition, it must disclose the following in writing to the “responsible plan fiduciary.
If You Sponsor a Health Plan, You’re a Fiduciary - Whether You Realize It or Not
Many employers who offer health care benefits to their employees don’t think of themselves as fiduciaries for those plans. Yet, recent legal developments, including the Consolidated Appropriations Act (CAA) of 2021 and pivotal court rulings, serve as a sharp reminder that they are, in fact, fiduciaries under ERISA, with all the responsibilities and liabilities that come with that role.
Things I Worry About (15): Executive Orders, Private Funds, and Fiduciary Standards (1)
The Trump administration has issued an Executive Order about facilitating 401(k) investments in “alternative assets.” The Order directs the Secretary of Labor to examine current guidance and decide if it is appropriate for that purpose. The Order also directs the Secretary of Labor to issue guidance to clarify fiduciary responsibilities for 401(k) investing in alternative assets and to consider creating a fiduciary safe harbor.
Things I Worry About (14): ESG and the Political Back-and-Forth at the DOL
The Trump administration is dropping its defense of the Biden-era ESG regulation on prudence for investment selection for fiduciaries of ERISA-governed retirement plans. In turn, the Biden era regulation reversed a regulation from the first Trump administration that was, in parts, anti-ESG. The Trump administration is expected to reinstate a regulation similar to the one from its first administration.
Things I Worry About (13): Every Plan Commits Prohibited Transactions and the Cornell University Decision
When an ERISA governed retirement plan engages and pays service providers, such as advisors and recordkeepers, it commits a prohibited transaction. However, if the plan fiduciaries satisfy the conditions of an exemption (which, in this case, would be the 408(b)(2) statutory exemption), the prohibited transaction is exempt, that is, it becomes permissible.
Things I Worry About (12): Private Funds and 401(k) Plans
The private fund industry is making inroads into 401(k) plans—attracted by the assets in those plans. The Trump administration has indicated that it will reduce the requirements for retail investors to invest in private funds (e.g., by lowering the accredited investor and qualified purchaser thresholds). It seems likely that private fund investment options will be introduced into 401(k) plans, perhaps not as standalone investments, but as parts of portfolio investment strategies.
Things I Worry About (11): DOL Cryptocurrency Guidance Withdrawn
The Department of Labor’s Employee Benefits Security Administration (EBSA) issued Compliance Assistance Release (CAR) 2022-01 that caused concerns among plan sponsors and fiduciaries about the use of cryptocurrencies in participant directed plans. On May 28 of this year, the DOL’s EBSA rescinded that CAR. That should have the effect of reducing, but not eliminating, the concerns. This article discusses the two pieces of guidance and the possible outcomes.
FINRA’s Focus on Account Recommendations and Rollovers | JD Supra
FINRA’s continued focus on account recommendations and rollovers is evident in its 2025 FINRA Annual Regulatory Oversight Report (the Report), Based on the Report, broker-dealers and their registered representatives (advisors) should ensure that account transfers and rollover recommendations are evaluated based on all relevant factors, that the recommendation aligns with the investor’s financial circumstances and investment objectives, and that the investor receives adequate disclosures.
Things I Worry About (10): FINRA Enforcement and Senior Investors (2) | JD Supra
FINRA’s 2025 Annual Regulatory Oversight Report 2025-annual-regulatory-oversight-report.pdf included a focus on issues related to retirees and senior investors. The Report provides guidance to broker-dealers about the priorities of FINRA in its regulation, supervision and enforcement programs for broker-dealers. In other words, it is one of FINRA’s ways of telling the regulated community that it should be paying particular attention to certain issues.
Things I Worry About (10): FINRA Enforcement and Senior Investors (2)
FINRA’s 2025 Annual Regulatory Oversight Report 2025-annual-regulatory-oversight-report.pdf included a focus on issues related to retirees and senior investors. The Report provides guidance to broker-dealers about the priorities of FINRA in its regulation, supervision and enforcement programs for broker-dealers. In other words, it is one of FINRA’s ways of telling the regulated community that it should be paying particular attention to certain issues.
Things I Worry About (9): FINRA Enforcement and Senior Investors | JD Supra
FINRA has recently issued its 2024 Annual Regulatory Oversight Report 2024 FINRA Annual Regulatory Oversight Report | FINRA.org. The Report provides guidance to broker-dealers about the priorities of FINRA in its regulation, supervision and enforcement programs for broker-dealers. In other words, it is one of FINRA’s ways of telling the regulated community that it should be paying particular attention to certain issues.
Things I Worry About (9): FINRA Enforcement and Senior Investors
FINRA has recently issued its 2024 Annual Regulatory Oversight Report 2024 FINRA Annual Regulatory Oversight Report | FINRA.org. The Report provides guidance to broker-dealers about the priorities of FINRA in its regulation, supervision and enforcement programs for broker-dealers. In other words, it is one of FINRA’s ways of telling the regulated community that it should be paying particular attention to certain issues.
Things I Worry About (8): DOL Investigations and Unsuspecting Plan Sponsors (2) | JD Supra
The Employee Benefit Security Administration (EBSA) of the US Department of Labor (DOL) recently released its Fact Sheet: EBSA Restores Nearly $1.4 Billion to Employee Benefit Plans, Participants, and Beneficiaries: ebsa-monetary-recoveries.pdf One of the targets of their investigation is “missing participants”. The DOL refers to that program as the “Terminated Vested Participant Benefits Payments”.
Things I Worry About (8): DOL Investigations and Unsuspecting Plan Sponsors (2)
The Employee Benefit Security Administration (EBSA) of the US Department of Labor (DOL) recently released its Fact Sheet: EBSA Restores Nearly $1.4 Billion to Employee Benefit Plans, Participants, and Beneficiaries: ebsa-monetary-recoveries.pdf One of the targets of their investigation is “missing participants”. The DOL refers to that program as the “Terminated Vested Participant Benefits Payments”.
ERISA Moments Ep. 31: The Trump Administration Policies for Retirement Plans
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, The Trump Administration Policies for Retirement Plans, on the Spotlight on Benefits blog. Watch the video on the Spotlight on Benefits blog.
ERISA Moments Ep. 31: The Trump Administration Policies for Retirement Plans
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, The Trump Administration Policies for Retirement Plans, below. The material contained in this communication is informational, general in nature and does not constitute legal advice.
Things I Worry About (7): DOL Investigations and Unsuspecting Plan Sponsors | JD Supra
The Employee Benefit Security Administration (EBSA) of the US Department of Labor (DOL) recently released its Fact Sheet: EBSA Restores Nearly $1.4 Billion to Employee Benefit Plans, Participants, and Beneficiaries: ebsa-monetary-recoveries.pdf The Fact Sheet describes the different EBSA programs that can recover money for participants, and the numbers are impressive. However, the Fact Sheet also has specific lessons for plan sponsors, fiduciaries and advisors.
Things I Worry About (7): DOL Investigations and Unsuspecting Plan Sponsors
The Employee Benefit Security Administration (EBSA) of the US Department of Labor (DOL) recently released its Fact Sheet: EBSA Restores Nearly $1.4 Billion to Employee Benefit Plans, Participants, and Beneficiaries: ebsa-monetary-recoveries.pdf The Fact Sheet describes the different EBSA programs that can recover money for participants, and the numbers are impressive. However, the Fact Sheet also has specific lessons for plan sponsors, fiduciaries and advisors.
The Best Interest Process for Plan-to-IRA Rollover
The effective date of the DOL’s new definition of fiduciary advice and the amendments to PTE 2020-02 have been stayed pending the outcome of the lawsuits challenging the rule and the amended PTE. However, there will still be instances when advisers will be considered fiduciaries under the current DOL fiduciary rule when recommending rollovers and as such, may need to comply with the current version of the PTE and undertake the best interest process described in this article.
ERISA Moments Ep. 30: DOL Investigations: Priorities for 2025
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, DOL Investigations: Priorities for 2025, below. The material contained in this communication is informational, general in nature and does not constitute legal advice.
Things I Worry About (6): Automatic Enrollment (5) and PEPs | JD Supra
The SECURE Act 2.0 required that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just days ago. “New” plans include most that were established on or after the enactment date of SECURE 2.0—December 29, 2022. “Old” plans—those adopted before the enactment date—are not required to automatically enroll.
Things I Worry About (6): Automatic Enrollment (5) and PEPs
The SECURE Act 2.0 required that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just days ago. “New” plans include most that were established on or after the enactment date of SECURE 2.0—December 29, 2022. “Old” plans—those adopted before the enactment date—are not required to automatically enroll.
Things I Worry About (5): Long-Term, Part-Time Employees (1) | JD Supra
SECURE Act 1.0 required that long-term, part-time (LTPT) employees be allowed to defer into 401(k) plans beginning January 1, 2024 for calendar year plans. However, plan sponsors are not required to contribute for them. LTPT employees for SECURE 1.0 are those who have worked at least 500 hours a year for three consecutive years, but didn’t satisfy a plan’s regular eligibility provisions.
SEC 2025 Examination Priorities: Retirees and Rollovers | JD Supra
Over 11,000 people are reaching age 65 every day and most have retired or are contemplating retirement. Many of those retirees will rollover money from retirement plans, including 401(k) plans, into IRAs. The IRA investments will need to provide sustainable retirement income for the lifetimes of those retirees, with regular withdrawals to pay for their costs of living. Many retirees will receive advice from broker-dealers and investment advisers who are subject to SEC regulation and examinations.
Things I Worry About (4): Automatic Enrollment (4) | JD Supra
The SECURE Act 2.0 required that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just weeks from now. “New” plans include most that were established on or after the enactment date of SECURE 2.0—December 29, 2022. Unfortunately, it is likely that some of the affected plan sponsors will fail to automatically enroll their eligible employees on a timely basis.
ERISA Moments Ep. 28: The 2024 Election and What it Means for Retirement Policy
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, The 2024 Election and What it Means for Retirement Policy, below. The material contained in this communication is informational, general in nature and does not constitute legal advice.
Things I Worry About (4): Automatic Enrollment (4)
The SECURE Act 2.0 required that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just weeks from now. “New” plans include most that were established on or after the enactment date of SECURE 2.0—December 29, 2022. Unfortunately, it is likely that some of the affected plan sponsors will fail to automatically enroll their eligible employees on a timely basis.
Correcting 401(k) Auto-Enrollment Failures
Q: I am a registered investment adviser who provides advisory services to 401(k) plan committees. Some of my client plans include auto-enrollment features, and I am aware that a few of them have had administrative problems with implementing the automatic-enrollment feature by missing enrollment for some eligible employees. I want to educate my client about addressing these issues.
ERISA Moments Ep. 27: The SEC Staff Speaks Out on Standards for Rollover Recommendations
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, The SEC Staff Speaks Out on Standards for Rollover Recommendations, on the Spotlight on Benefits blog.
ERISA Moments Ep. 27: The SEC Staff Speaks Out on Standards for Rollover Recommendations
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, The SEC Staff Speaks Out on Standards for Rollover Recommendations, below. The material contained in this communication is informational, general in nature and does not constitute legal advice.
Things I Worry About (3): Automatic Enrollment (3) | JD Supra
The SECURE Act 2.0 required that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just weeks from now. “New” plans include most that were established on or after the enactment date of SECURE 2.0—December 29, 2022. Unfortunately, it is likely that some of the affected plan sponsors will fail to automatically enroll their eligible employees on a timely basis.
Things I Worry About (3): Automatic Enrollment (3)
The SECURE Act 2.0 required that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just weeks from now. “New” plans include most that were established on or after the enactment date of SECURE 2.0—December 29, 2022. Unfortunately, it is likely that some of the affected plan sponsors will fail to automatically enroll their eligible employees on a timely basis.
Things I Worry About (2): Automatic Enrollment | JD Supra
The SECURE Act 2.0 requires that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just weeks from now. Unfortunately, there are unanswered questions about how the automatic enrollment requirement will be applied. This article discusses two of those. SECURE Act 2.0 was enacted on December 29, 2022.
Things I Worry About (2): Automatic Enrollment (2)
The SECURE Act 2.0 requires that “new” 401(k) and private sector 403(b) plans automatically enroll their eligible employees, but not until plan years beginning after December 31, 2024…just weeks from now. Unfortunately, there are unanswered questions about how the automatic enrollment requirement will be applied. This article discusses two of those. SECURE Act 2.0 was enacted on December 29, 2022.
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