UPDATED JUNE 1 at 4:00 P.M.
Preston Rutledge, head of the DOL’s Employee Benefits Security Administration, is set to leave the agency at the end of this week, but so far, a replacement has not been named.
An April 24 statement by Secretary of Labor Eugene Scalia verified that Rutledge will end his service as Assistant Secretary of Labor for EBSA at the end of May.
With Rutledge departing in just a matter of days, one school of thought is that current Principal Deputy Assistant Secretary Jeanne Wilson will take on the Assistant Secretary position in an acting capacity for the remainder of the year.
UPDATE: Wilson was appointed Acting Assistant Secretary on June 1.
It’s also possible that Wilson could be formally nominated to replace Rutledge, but it would be a tall order to have her or any other nominee confirmed in the near future. The Assistant Secretary position requires Senate confirmation, which means that any nominee would have to go through the formal nomination and vetting process. That could be particularly troublesome, given the current restrictions that the COVID-19 pandemic has placed on the working environment. There’s also the possibility that the position may be limited by a change in presidential administrations, meaning that the length of the position could be, at most, around six months.
Meet the New Boss?
Wilson was appointed as EBSA’s Deputy Assistant Secretary for Policy in November 2017, and in May 2019 was named Principal Deputy Assistant Secretary, serving as the principal advisor to the Assistant Secretary.
Her role became even more prominent following an October 2019 reorganization at EBSA that resulted in the Principal Deputy Assistant Secretary position taking on oversight of the Offices of Regulations and Interpretations and Exemption Determinations. Those functions were previously overseen by Deputy Assistant Secretary for Program Operations Timothy Hauser, who is a career staffer, instead of a political appointee.
A Full Regulatory Plate
Whether it’s Wilson or someone else taking on the role, Rutledge’s replacement will be charged with overseeing the implementation of the recently finalized rule providing a safe harbor for electronic disclosures of retirement plan statements, as well as provisions of the Setting Every Community Up for Retirement Enhancement (SECURE) Act, such as guidance on the new pooled employer plan (PEPs) provisions. A forthcoming Request for Information by the DOL on PEPs is expected to be released soon.
One effort that is looking less likely to happen is a rewrite of the DOL’s vacated fiduciary rule. The federal government’s unified regulatory agenda showed that the agency had set a target date of December 2019 to issue a Notice of Proposed Rulemaking, but that date came and went without any action. Moreover, in the time remaining before the end of the year, it will be difficult to finalize a regulation under the Administrative Procedure Act that couldn’t be overturned by a change in administration.
It was anticipated that the DOL would seek to harmonize any new “conflict of interest” guidance with the Securities and Exchange Commission’s Regulation Best Interest, which is set to take effect June 30, 2020.
Other issues include additional guidance on missing plan participants. Though it’s not certain whether the DOL will seek to issue guidance updating Field Assistance Bulletin 2014-01, which is the agency’s primary guidance on procedures for dealing with missing participants, this issue has been on the DOL’s radar for quite some time—as Wilson indicated last June.