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Highlights

The Department of Labor's (DOL) Employee Benefits Security Administration (EBSA) enforces the Employee Retirement Income Security Act of 1974 (ERISA), which sets certain minimum standards for private sector pension plans. On the basis of GAO's prior work, the Senate Committee on Health, Education, Labor and Pensions asked GAO to review EBSA's enforcement program. Specifically, this report assesses (1) the extent to which EBSA has improved its compliance activities since 2002; (2) how EBSA's enforcement practices compare to those of other agencies; and (3) what obstacles, if any, affect ERISA enforcement. To do this, we reviewed EBSA's enforcement strategy and operations, and interviewed officials at EBSA, the Internal Revenue Service (IRS) and the Securities and Exchange Commission (SEC), among others.

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Recommendations

Matter for Congressional Consideration

Matter Status Comments
To strengthen DOL's ability to protect pension plan assets, Congress may wish to consider amending section 502(1) of ERISA to give DOL greater discretion to waive the civil penalty assessed against a fiduciary or other person who breaches or violates EIRSA in instances where doing do would facilitate the restoration of plan assets.
Closed - Not Implemented
Congress has taken no action on this recommendation.

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Labor 1. To improve overall compliance and oversight, the Secretary of Labor should direct the Assistant Secretary of Labor, EBSA, to evaluate the extent to which EBSA could supplement its current enforcement practices with strategies used by similar enforcement agencies, such as routine compliance examinations and dedicating staff for risk assessment.
Closed - Implemented
The Employee Benefits Security Administration (EBSA) stated that they continually evaluate their enforcement practices in overseeing the private pension industry. To address risk assessment trends, EBSA established a National Enforcement Library (NEL) to serve as a "knowledge management" tool for the agency and will provide information on current trends and emerging developments in employee benefit plan investment and management. EBSA officials said they had completed the draft outline of NEL, and were reviewing potential content in order to develop a more comprehensive outline. Although the extent to which staff will be dedicated to analyze trends in the private pension industry is unclear, staff were dedicated to develop this risk assessment library.
Department of Labor 2. To improve overall compliance and oversight, the Secretary of Labor should direct the Assistant Secretary of Labor, EBSA, to conduct a formal review to determine the effect that ERISA's statutory filing deadlines have on investigators' access to timely information and the likely impact if these deadlines were shortened.
Closed - Implemented
In response to our recommendation, the Office of Enforcement completed a formal review of 64 randomly selected investigations that were opened based the Form 5500, either by review or a targeting report. EBSA was unable to definitely conclude that an earlier statutory filing deadline would have a significant impact on the outcome of investigations EBSA opens based on Form 5500 reviews. However, they noted that while an earlier filing date may have a positive impact on an investigation's outcome, their analysis found that the current statutory filing date does not result in placing plans at significant risks.
Department of Labor 3. To improve overall compliance and oversight, the Secretary of Labor should direct the Assistant Secretary of Labor, EBSA, to direct the Office of Enforcement to establish, where appropriate, formal Securities and Exchange Commission coordination groups in the regional offices, similar to those already in place in some EBSA regions.
Closed - Implemented
On July 29, 2008, the Department of Labor/Employee Benefits Security Administration (EBSA) and the Securities and Exchange Commission entered into a Memorandum of Understanding (MOU) setting forth a framework for consultation and exchange of information. The MOU is designed to facilitate the ongoing consultation and communication between EBSA and the SEC concerning matters of mutual interest, including examination findings and trends and enforcement cases. To ensure continued communications between the SEC and EBSA staffs in the agencies' field offices, the DOL and SEC are required to designate persons to serve as points of contact for each regulator in each of the SEC and DOL regional offices and respective headquarters office. EBSA provided that SEC with its contact list on August 12, 2008.
Department of Labor 4. To improve overall compliance and oversight, the Secretary of Labor should direct the Assistant Secretary of Labor, EBSA, to direct the Office of Program Planning, Evaluation, and Management to evaluate the factors affecting staff attrition and take appropriate steps, as necessary. Such an effort might include a market-based study to assess comparable private sector compensation within specific geographic locations and include recommendations for modifying pay structures, if appropriate.
Closed - Implemented
Employee Benefits Security Administration (EBSA) officials said that they continue to monitor its attrition to determine whether there are discernible trends. To assist them in understanding why employees stay or leave the agency, they said that they analyzed the most recent Federal Human Capital Survey (FHCS) conducted by the U.S. Office of Personnel Management (OPM). They reported that OPM identified fifteen questions that are indicators of whether employees decide to stay or leave an agency. On eleven of the fifteen questions, EBSA scored higher than both the Department of Labor (Labor) as a whole and the federal government. On the four questions where EBSA scored less than either Labor or government-wide results, there was only a 1-3 percentage point difference. EBSA officials said that they continue to review and analyze data collected on exit surveys that employees are asked to complete when they leave the agency. The agency will also explore alternatives to determine why employees leave or might leave the agency. If the reasons for employees leaving or planning to leave can be determined, EBSA will explore options that are proven to improve employee retention. For FY11, Labor required EBSA to develop an agency operating plan that outlined the agency's strategic goals and ways the agency intends to address their evolving workloads.

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