Spotlight on Benefits

Seventh Circuit Splits with Sister Circuits, Rules Employers Entitled to Full Credit for Prior Partial Withdrawal Liability

On September 17, 2026, the US Court of Appeals for the Seventh Circuit handed employers a significant win in Central States, Southeast and Southwest Areas Pension Fund v. Consumers Concrete Corp., No. 25-1765, affirming a district court ruling that rejected a multiemployer pension fund’s $23 million withdrawal liability assessment. The decision deepens a growing disagreement among the federal circuits over how to implement the standards under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA) for applying an employer’s credit for a prior partial withdrawal liability assessment against the later calculation of the employer’s liability for a complete withdrawal, and it carries real financial consequences for employers that contribute to multiemployer pension plans.

Case Background and Holding

Consumers Concrete Corp. was a contributing employer to the Central States, Southeast and Southwest Areas Pension Fund. In 2017, Consumers Concrete partially withdrew from the Fund and was assessed approximately $11.3 million in partial withdrawal liability. Two years later, in 2019, the company completely withdrew from the Fund and was assessed roughly $22.9 million in complete withdrawal liability.

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What Employers Need To Know About Trump Account Contribution Programs

On August 11, 2026, the IRS published proposed regulations providing guidance on employer contributions to Trump Accounts under new Section 128 of the Internal Revenue Code. The regulations are only proposed and would not take effect until the plan year following the year in which these regulations are finalized (thus, 2027 at the earliest). Employers can rely on the proposed regulations in the meantime. Issues discussed below may change before the guidance is finalized.

Background

A Trump Account contribution program is a separate written plan maintained by an employer for the exclusive benefit of its employees, providing contributions to the Trump Accounts of employees or the employees’ dependent(s). There are two main types of contributions: (1) contributions elected by the employee, potentially on a pretax basis, and (2) contributions made by the employer, also potentially on a pretax basis.

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Third Circuit Holds That 401(k) Fiduciaries’ Good Process Defeats Claims of Imprudence

This decision affirms some key ERISA concepts that fiduciary committee members should consider and defendants should emphasize in nearly every lawsuit alleging fiduciary imprudence. The most important principle is that ERISA was designed to grant fiduciaries discretion in making decisions and to defer to fiduciaries who employ a good process.

To view the full alert, visit the Faegre Drinker website.

New Proposed Rules Would Allow Employers to Offer Fertility Benefits as “Excepted Benefits” Outside Their Major Medical Plans

On May 13, 2026, the Departments of Treasury, Labor, and Health and Human Services jointly published proposed regulations that would establish a new category of “limited excepted benefits” for fertility-related coverage under Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code, and the Public Health Service Act. If finalized, these rules would create a streamlined pathway for employers to offer separate fertility coverage (on an insured or self-insured basis) to employees who are not otherwise enrolled in the employer’s primary group health plan. The fertility “excepted benefits” would be generally exempt from Affordable Care Act’s mandates (such as requirements to cover certain preventive care services), HIPAA portability rules, the No Surprises Act, and certain other federal mandates that apply to traditional group health plans. If finalized, the regulations would be effective for plan years beginning on or after January 1, 2027.

What the Proposed Rules Would Do

The proposed regulations would permit employers to offer fertility benefits — covering diagnosis, mitigation, or treatment of infertility or infertility-related reproductive health conditions — as a standalone insured or self-insured benefit separate from major medical coverage. Covered services could include diagnostic lab tests, imaging, hormone panels, in vitro fertilization (IVF), intrauterine insemination (IUI), fertility medications, surgical procedures, and preconception care.

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Minnesota Secure Choice: What Employers Need to Know as Compliance Deadlines Approach

Minnesota’s Secure Choice Retirement Program requires employers doing business in Minnesota to either enroll workers in the state’s payroll‑deduction IRA program or, if the employer already offers a qualifying retirement plan (e.g., a 401(k), 403(b), SEP, or SIMPLE), to certify its exemption from that requirement by the end of the employer’s assigned registration window. All employers with 100+ covered employees must set up a Minnesota Secure Choice Employer Account by June 30, 2026, and either enroll their workers in the state’s payroll‑deduction IRA program or certify their exemption by the required date. Noncompliant employers face graduated fines of up to $500 per employee after an initial warning period.

Who Is a “Covered Employer”?

The Secure Choice Retirement Program applies to any private-sector employer that has been doing business in Minnesota for at least 12 months and employs five or more covered employees receiving Minnesota taxable wages. Temporary or seasonal employees expected to work 180 days or less are excluded from the count.

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DOL Takes Aim at Proxy Advisory Services—What Plan Fiduciaries Need to Know About Technical Release 2026-01 and Their Fiduciary Duties Related to Proxy Voting

President Trump is strongly critical of proxy advisory services and last year directed several federal agencies — including the Department of Labor (DOL) and the Securities and Exchange Commission (SEC) — to do something about it. In his December 11, 2025, executive order, President Trump stated that “proxy advisors regularly use their substantial power to advance and prioritize radical politically-motivated agendas — like ‘diversity, equity, and inclusion’ and ‘environmental, social, and governance’ — even though investor returns should be the only priority.¹

Even before the executive order, DOL’s Employee Benefits Security Administration (EBSA) drew a legal “line in the sand” regarding what one of its officials termed “politicized investing,”² reminding plan fiduciaries that ERISA does not permit them to “subordinate the interests of the participants and beneficiaries in their retirement income or financial benefits under the plan to other objectives.”³ More recently, EBSA Assistant Secretary Daniel Aronowitz announced that EBSA will prioritize civil investigations involving breaches “of the duty of loyalty [including self-dealing and conduct promoting] goals unrelated to participants’ best interests, such as the promotion of environmental, social, or governance objectives.”⁴

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ERISA Litigation Roundup: Supreme Court Unanimously Rules Multiemployer Pension Plans May Use Post-Measurement-Date Actuarial Assumptions to Calculate Withdrawal Liability

On May 21, 2026, the US Supreme Court issued a unanimous decision in M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 23-1209, resolving a circuit split on a question of enormous financial consequence to employers participating in multiemployer pension plans (MPPs): whether a plan’s actuary must adopt its actuarial assumptions for purposes of withdrawal liability calculations on or before the “measurement date” for those calculations, or whether it may instead select assumptions after that date. In an opinion authored by Justice Jackson, the Court held that ERISA does not require actuarial assumptions to be adopted “as of” the measurement date, but stressed that these actuarial assumptions must still reflect the actuary’s “best estimate of anticipated experience under the plan,” which generally requires that the assumptions reflect information about the plan’s conditions as they stood on the measurement date.

Background

Under ERISA and the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), an employer that withdraws from an underfunded MPP must pay “withdrawal liability,” which is its proportionate share of the plan’s unfunded vested benefits (UVBs). The statute requires this liability to be calculated “as of” the last day of the plan year preceding the employer’s withdrawal, or the “measurement date.” Calculating UVBs requires actuarial assumptions about the plan and its future benefit obligations, most notably a discount rate that converts the plan’s future liabilities to present-day dollars. The discount rate dramatically affects the total withdrawal liability figure.

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The IRS Makes It Easy for Employers to Set Up an Educational Assistance Plan

The Internal Revenue Service (IRS) recently issued a template plan document that employers can use to establish a qualified educational assistance program under Section 127 of the Internal Revenue Code (Code). For employers looking for a straightforward plan, the IRS has made it simple. For employers with more tailored objectives, including around course restrictions, grade requirements, clawback provisions, or benefit allocation, a custom plan document may be a better option.

What is a Section 127 Program?

A qualified educational assistance program under Section 127 of the Code allows employers to provide up to $5,250 per employee per year in tax-free benefits for tuition, fees, books, supplies, equipment, and qualified education loan repayments. The $5,250 cap will be indexed for inflation beginning with taxable years after 2026.

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Thinking ESOPs: Department of Labor Identifies New Enforcement Priorities

The Employee Benefits Security Administration’s (EBSA) April 2026 Field Assistance Bulletin marks a pivotal change in Department of Labor enforcement for ESOPs. The new guiding principles and enforcement priorities are designed to curb aggressive, unpredictable actions by the DOL, especially around ESOP valuation, and to ensure fair treatment for plan fiduciaries. These changes prioritize targeting only the most serious violations, require advance notice and clarity for regulated parties, and mandate leadership oversight for significant enforcement initiatives. This edition of Thinking ESOPs provides a detailed analysis of EBSA’s historical approach, the impact of these new priorities, and practical takeaways for ESOP stakeholders navigating this evolving regulatory landscape.

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DOL Proposes New Rules for Electronic and Paper Benefit Statements

On February 25, 2026, the Department of Labor (DOL) released proposed regulations that would amend the rules for electronic delivery of employee benefit plan disclosures, as required by SECURE 2.0. These proposals aim to harmonize the DOL’s electronic disclosure safe harbors with new statutory mandates regarding paper statements for retirement plans.

A Brief History of Electronic Disclosures

Since 2002, the DOL has provided two safe harbor frameworks for the electronic delivery of ERISA-required disclosures. The 2002 safe harbor permitted electronic delivery for employees with regular work-related computer access (“wired-at-work”) or those who affirmatively consented, but it required a default paper disclosure for others. The 2020 safe harbor expanded electronic delivery for retirement plans by allowing default electronic disclosure if a participant provided a valid electronic address, with an initial paper notice and the right to opt out at no cost. These rules enabled most plans to use electronic delivery; the DOL estimates that over 96% of retirement plan participants receive some ERISA disclosures electronically.

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