Lisa Gomez, who was nominated to serve as Assistant Secretary of Labor for the Employee Benefits Security Administration, tackled a wide range of issues during her Oct. 7 Senate confirmation hearing.
Appearing before the Senate Health, Education, Labor & Pensions Committee, Gomez told members of the committee that, if confirmed, she will be committed to serving and protecting the participants and beneficiaries in America’s employee benefit plans. “I will dedicate myself to carrying out EBSA’s mission of ensuring the security of the retirement, health and other workplace-related benefits of America’s workers and their families,” Gomez said in her opening statement. 
Gomez is a partner at labor law firm Cohen, Weiss and Simon LLP, representing employer and union pension plans. She joined the firm in 1994, became a partner in 2002 and currently serves as Chair of the firm’s Management Committee.
It seems likely that Gomez will be confirmed. While Republican members of the committee criticized recent legislative and regulatory efforts by Congress and the Biden administration, there did not appear to be any direct criticism of Gomez’s record or her ability to serve.
If confirmed by the Senate, she would replace Ali Khawar, who has been serving as Acting Assistant Secretary for the EBSA and would remain as Principal Deputy Assistant Secretary.
Fiduciary Rulemaking
The closest the hearing got to addressing the DOL’s efforts on the fiduciary rulemaking front came when Sen. Tommy Tuberville (R-AL) asked what it means to be a fiduciary as defined by ERISA.
While noting there is a five-part test and that nothing is more central to ERISA than defining who is a fiduciary, Gomez observed that determining exactly who is a fiduciary in different contexts has been the source of some disagreement and alluded to revisiting the issue. “I look forward to working with the SEC, as well as with the [Labor] department, to be briefed on the efforts of looking at the definition of a fiduciary in different contexts and taking another look at the conflicts of interest rule, and how it would apply in different situations,” she explained.
When pressed further by Sen. Tuberville, Gomez noted that there are different nuances under different circumstances for fiduciaries, but that she is committed to making sure they are working in the best interest of participants and beneficiaries.
Women’s Retirement Protection
Sen. Patty Murray (D-WA), who is chair of the Senate HELP Committee, asked Gomez how she would address the challenges women face in saving for retirement. Murray noted that she had recently reintroduced the Women’s Retirement Protection Act, which would expand eligibility for employer-sponsored retirement plans to more part-time workers, as well as existing spousal protections.
While Gomez did not address the specifics of the legislation, she did offer to help address the issue. “I am fully supportive of efforts to increase financial security for those who face systemic barriers, including women, or who have been economically or socially marginalized, particularly as a result of the pandemic,” Gomez stated. “And if confirmed, I would look forward to working with Congress to better understand the challenges and to address those challenges so that women have more financial security in retirement.”
Small Business Plans
In response to a question from Sen. John Hickenlooper (D-CO) about ways to address cost concerns for small business owners in setting up a retirement plan, Gomez did not get into specifics, but noted that she would want to be briefed by the EBSA staff in this area. She added that she believes it’s important to make sure small business owners are aware of the options currently available to them and to “dispel any myths” about the administrative and cost burdens in offering such a plan.
Proxy Voting
For her part, Sen. Tammy Baldwin (D-WI) raised the issue of proxy voting and the Empowers Act, legislation she introduced to reverse the DOL’s final rule under the Trump administration that limited retirement plans from voting on corporate proxies only when such a decision could have a financial impact on the retirement plan. Baldwin noted that her legislation would allow workers to elect representative trustees who would manage their ERISA plan jointly with the employer’s trustees and set voting guidelines that investment managers would be required to follow.
Notwithstanding that the DOL is poised to release a new, proposed proxy voting rule, Gomez vowed to work with Congress. “I would commit to working with you and with Congress to better understand the implications of the existing rules and how the Empowers Act could play a part,” she noted.
Multiemployer Relief
Responding to a question from Sen. Tina Smith (D-MN) about implementing the multiemployer plan relief provided under the American Rescue Plan, Gomez again noted that one of her first priorities would be to get up to speed on where things stand. “If confirmed, I expect to be fully briefed on the current status of the rulemaking process and to work with the other departments in making sure we implement a program that achieves the mission of that law and has the appropriate safeguards, so that plans that are eligible for this relief will receive the assistance they need,” she explained.
Gomez also pledged to Sen. Chris Murphy (D-CT) that she would look into the issue of pension risk transfers, after he cited concerns about the practice.
The committee also considered the nomination of Jose Javier Rodriguez to be Assistant Secretary for Employment and Training at the Department of Labor. While Sen. Murray urged her colleagues to support the nominees, she did not provide a timeline on when the Senate HELP Committee would vote on their nominations.
A video replay of the hearing can be viewed here.
