EBSA Reports on Enforcement Activities for Fiscal Year 2023

On February 13, 2024, the Employee Benefits Security Administration (EBSA), the DOL agency responsible for enforcement of ERISA, reported monetary recoveries totaling over $1.434 billion in its report on enforcement activities for fiscal year (FY) 2023. EBSA oversees approximately 2.8 million health plans, 619,000 other welfare benefit plans, and 765,000 private pension plans. These ERISA-covered plans cover 153 million workers, retirees, and dependents who participate in private-sector pension and welfare plans that hold an estimated $12.8 trillion in assets.

Total recoveries for terminated vested participants (e.g., individuals no longer working for an employer but entitled to benefits) accounted for more than half of the $844.7 million in benefits recovered and obtained through enforcement actions, with $429.2 million in benefits recovered for 5,690 terminated vested participants in defined benefit pension plans.

Informal resolutions of individual complaints resulted in another $444.1 million in recoveries, and the Voluntary Fiduciary Correction Program (VFCP) and Abandoned Plan Program recovered $84.5 million and $61.2 million, respectively. The VFCP allows plan officials who have identified certain ERISA violations to remedy the breaches and voluntarily report the violations to EBSA without becoming the subject of an enforcement action. EBSA received 1,192 VFCP applications for FY 2023.

The Delinquent Filer Voluntary Compliance Program (DFVCP) encourages plan administrators to bring their plans into compliance with ERISA's filing requirements by providing significant incentives for fiduciaries and others to self-correct. 18, 955 Form 5500s were filed through the DFVCP for FY 2023.

EBSA also reported that it closed 731 civil investigations in FY 2023, with 505 of those closed “with results” (such as nonmonetary corrections or injunctive relief) and 50 referred for litigation. EBSA’s criminal investigations resulted in 60 indictments and 77 guilty pleas or convictions.

Other reported actions include nonmonetary corrective actions and interventions regarding the denial of coverage for a life-saving heart transplant and access to COBRA coverage for mental health benefits. Additionally, the opening paragraph of the report puts “increased access to mental health benefits” on par with eliminating illegal plan provisions and improving fiduciary governance in terms of how the agency’s enforcement activities have “made a difference for current and future participants,” indicating an intention to make access to mental health coverage an ongoing priority.

Sponsors of ERISA retirement and/or health and welfare plans should be aware of these enforcement activities and take note that almost a third of the total reported recovery amounts for FY 2023 are the results of complaints submitted to EBSA by individuals (usually plan participants) rather than investigative activities initiated by the agency.

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