The ESOP Association petitions U.S. DOL for change
At issue is a long-delayed rulemaking that TEA claims is essential to the formation and ongoing operation of ESOPs.
The national trade association representing companies with Employee Stock Ownership Plans (ESOPs) and ESOP professionals recently petitioned the U.S. Department of Labor to undertake a long-delayed rulemaking essential to the formation and ongoing operation of ESOPs.
According to The ESOP Association (TEA), the Department of Labor has “steadfastly refused” to fulfill requirements of the Employee Retirement Income Security Act (ERISA) since 1974 — a violation of Congressional direction and stakeholders’ rights under the Administrative Procedure Act (APA).
“The Department of Labor has flouted Congress’ mandate within ERISA for nearly five decades,” James Bonham, president and chief executive officer of The ESOP Association, says in a statement. “On behalf of the millions of Americans with ownership in an ESOP, we have filed this petition to compel Secretary [Martin] Walsh to undertake the rulemaking Congress directed in 1974, which was nearly completed in 1988 but has been mothballed ever since. The Labor Department has failed to follow Congress’ requirements, and the regulatory vacuum has created a chilling effect on ESOP formation and operation that has effectively denied millions of Americans the opportunity for a better retirement and ownership in the place where they work.”
TEA’s petition is based on rights under the Administrative Procedure Act.
ESOPs were created by Congress to provide a vehicle by which a company’s employees could obtain an ownership stake in their employer through a Qualified Retirement Plan (QRP). Today, more than 6,245 companies are fully or partially owned by more than 10 million employees through an ESOP, according to publicly available data included in the most recent DOL’s Form 5500 from 2019.
However, because ESOPs are stuck in a regulatory no-man’s land, according to TEA, countless businesses have turned away from an ESOP due to the DOL’s failure to provide clear regulation and guidance as Congress directed. Instead, DOL has pursued a strategy of “regulation by litigation,” TEA claims, undertaking thousands of investigations and filing lawsuits against ESOP trustees and founders. The APA was enacted to specifically prevent government agencies from regulatory abuses like the DOL’s approach to regulating ESOPs, TEA officials add.
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U.S. Labor Secretary Marty Walsh is required to provide a formal, written response to the petition. “Should the DOL respond that it will not enter a formal notice and comment rulemaking process, a court may force the department to fulfill its responsibilities,” according to a statement from TEA.