Investigative Authority

Last updated: January 2025

1. Statutory Authority. ERISA Sections 504 and 506, as amended by the Comprehensive Crime Control Act of 1984 (CCCA), give the Secretary investigative authority.
   1. ERISA Section 504. ERISA Section 504(a) gives investigative authority to the Secretary to determine whether any person has violated or is about to violate Title I of ERISA or any related regulations or orders. This authority extends to investigations of actual or potential violations of ERISA.
   2. Interpretation of Section 506. ERISA Section 506(b), as amended by the CCCA, gives the Secretary the authority to investigate criminal violations of Title 18 of the United States Code (U.S.C.) as they relate to employee benefit plans. Specifically, the Secretary has jurisdiction to investigate potential criminal violations of U.S.C. Title 18 Sections 664, 1027, 1954, 669, 1035, 1347, and 1518. However, the Secretary continues to observe certain limitations on the exercise of this authority under an agreement with the DOJ. See paragraph 6 below.

2. Making Information Available to Affected Person. ERISA Section 504(a) allows the Secretary to make information available to any person actually affected by any matter that is the subject of an investigation. Generally, such persons will include plan fiduciaries, participants, beneficiaries, or their representatives. In appropriate cases, others may also be included.

   ERISA Section 504(a) does not permit the Secretary to disclose information specifically prohibited by another statute, such as grand jury information subject to Rule 6(e) of the Federal Rules of Criminal Procedure or tax information subject to Internal Revenue Code (IRC) Section 6103. See the Enforcement Manual (EM) section on the Release of Information for a discussion of restrictions on disclosure.

3. Delegation of Authority to EBSA’s Assistant Secretary. Secretary’s Order 1-2011 dated December 21, 2011, (Figure 1) delegated authority to EBSA’s Assistant Secretary to carry out programs and activities to be performed by the Secretary under the following laws, including amendments:
   1. ERISA, as amended, except for subtitle C of Title III, and Title IV;⁽¹⁾
   2. the Welfare and Pension Plans Disclosure Act of 1958, as amended;⁽²⁾
   3. the Federal Employees’ Retirement System Act of 1986;
   4. Health Insurance Portability and Accountability Act of 1996 (HIPAA);
   5. the Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA);
   6. Section 3001 of the American Recovery and Reinvestment Act of 2009;
   7. Sections 18A and 18B of the Fair Labor Standards Act of 1983 (FLSA), as amended, and the associated FLSA authorities;
   8. IRC Sections 45R and 4980H; and
   9. as directed by the Secretary, such as additional Federal acts similar to or related to those listed in paragraphs a-h above, that from time to time may assign additional authority or responsibilities to the DOL or Secretary.
4. Investigation of Criminal Matters Related to ERISA.

   1. On February 9, 1975, DOL and DOJ executed a Memorandum of Understanding (MOU) that provided for a specific case-by-case delegation from the DOJ regarding investigations of criminal matters relating to employee benefit plans (Figure 2). The CCCA gave the DOL express statutory authority to investigate criminal matters relating to employee benefit plans.

      The DOL is no longer required to obtain delegation on a case-by-case basis. However, EBSA Investigators/Auditors will contact the appropriate United States Attorney’s Office (USAO) as early as possible in the investigation to determine interest by the USAO. See the EM section on the Criminal Investigations Program for more information about EBSA’s criminal investigations.

   2. The Secretary will investigate matters that may form the basis for possible criminal action under ERISA Section 501, based on either the receipt of a complaint of an alleged violation or on their own volition. These matters include reporting and disclosure provisions under part 1 of Title I of ERISA and any regulations issued thereunder.
5. Parallel Civil and Criminal Investigations. Occasionally, EBSA personnel may request to terminate or postpone a civil ERISA investigation pending completion of another government agency’s investigation of a parallel criminal matter. Procedures for handling such requests are set forth in the EM section on the Criminal Investigations Program.
6. Section 411(a) Exemption Proceedings. Pursuant to the MOU between the DOL and the DOJ, the investigation and presentation of issues concerning the appropriateness of granting a Certificate of Exemption under Section 411(a) to a person by a federal court will be the responsibility of DOL including appearances before the court. See the EM section on Prohibited Persons.
7. Investigations under Title IV of ERISA. ERISA does not give the Secretary authority to investigate under Title IV of ERISA. Under Section 4003(d), the Pension Benefit Guaranty Corporation (PBGC) may make agreements with the Secretary to help carry out the provisions of Title IV.
8. Health Oversight Authority. HIPAA privacy regulations, collectively known as the “Privacy Rule,” set forth several “permitted uses,” “disclosures,” or “standards” which allow covered entities to disclose Protected Health Information (PHI) without patient authorization. The Privacy Rule’s “health oversight” standard enables EBSA to obtain PHI from plans, their service providers, and physicians as is necessary to ensure compliance with ERISA. EBSA is a health oversight agency.
9. Litigation Responsibility for Civil Cases. ERISA provides that attorneys appointed by the Secretary represent the Secretary in all civil actions. An MOU between the DOJ and DOL dated February 11, 1975, establishes that the Office of the Solicitor of Labor (SOL) has primary litigation responsibility for civil cases arising in the district courts and courts of appeals under ERISA, with certain exceptions (Figure 3).
10. Prosecution of Criminal Matters. The MOU between DOL and DOJ (Figure 2) provides that the DOJ will prosecute EBSA’s criminal investigations.

11. Agreements with Other Government Agencies. DOL may enter into an MOU or a common interest agreement with another government agency or other non-governmental entities to share information and resources. For more information about MOUs and common interest agreements, see the EM section on Relationship with the Federal Financial Agencies, other Regulatory Agencies, and other Interested Parties.

    In addition to the MOU with the DOJ, DOL has MOUs with various government agencies. The following is a partial list of MOUs DOL has entered into:

    1. IRS (see EM section on Relationship with IRS);
    2. Departments of Treasury and Health and Human Services, which is different than the MOU with the IRS mentioned in paragraph 11.a (see EM section on Relationship with IRS);
    3. Office of the Inspector General, Office of Labor Racketeering (see EM section on Relationship with OIG);
    4. Federal Financial Institution Regulatory Agencies (Federal Reserve System, Federal Deposit Insurance Corporation, National Credit Union Administration, and the Office of the Comptroller of the Currency) (see EM section on Relationship with Federal Financial Agencies, other Regulatory Agencies, and other Interested Parties);
    5. Securities and Exchange Commission (see EM section on Relationship with Federal Financial Agencies, other Regulatory Agencies, and other Interested Parties);
    6. State Insurance Agencies;
    7. State Attorneys General; and
    8. National Association of Insurance Commissioners.

*The Secretary can delegate this authority to EBSA’s Assistant Secretary.

Subject: Delegation of Authority and Assignment of Responsibilities to the Employee Benefits Security Administration

1. Purpose. To delegate authority and assign responsibilities for the administration of the Department of Labor's responsibilities under the Employee Retirement Income Security Act of 1974, (ERISA), Federal Employees' Retirement System Act of 1986 (FERSA), and certain other statutes.
2. Authority and Directives Affected. This Order supersedes Secretary’s Order 3-2010 (September 2, 2010).

3. Background. ERISA places responsibility in the Department of Labor for the administration of a comprehensive program to protect the interests of participants and beneficiaries of private sector employee benefit plans. This Order delegates the Secretary of Labor’s authority and assigns responsibility for ERISA and for specified other laws to the Assistant Secretary for Employee Benefits Security.

   In particular, this Order delegates the Secretary’s authority and assigns responsibility under sections 45R and 4980H of the Internal Revenue Code, as added by sections 1421 and 1513, respectively, of Public Law 111-148, the Patient Protection and Affordable Care Act, 124 Stat. 119 (2010). The duties delegated to the Assistant Secretary include authority and responsibility to define the term "seasonal worker" under 26 U.S.C. 45R(d)(5)(B) and 4980H(c)(2)(B)(ii).

   All other authorities and responsibilities set forth in this Order were delegated or assigned previously to the Assistant Secretary for EBSA in Secretary’s Order 3-2010, and this Order continues those delegations and assignments in full force and effect, except as expressly modified herein.

4. Delegation of Authority and Assignment of Responsibilities.
   1. Except as hereinafter provided, the Assistant Secretary for Employee Benefits Security is delegated the authority and assigned the responsibilities of the Secretary of Labor —
      1. under the following statutes, including any amendments:
         1. the Employee Retirement Income Security Act of 1974, as amended, except for subtitle C of Title III and Title IV (29 U.S.C. §§ 1001-1232);
         2. the Welfare and Pension Plans Disclosure Act of 1958, as amended Pub. L. 85-836, 72 Stat. 997; Pub. Law 86-624, 74 Stat. 417; Pub. Law 87-420, 76 Stat. 35.
         3. the Federal Employees’ Retirement System Act of 1986 (5 U.S.C. §§ 8401-8479);
         4. the Health Insurance Portability and Accountability Act of 1996, Pub. Law 104-191, 110 Stat. 1936;
         5. section 311(b) the Children's Health Insurance Program Reauthorization Act of 2009, Pub L. 111-3, 123 Stat. 65;
         6. section 3001 of the American Recovery and Reinvestment Act of 2009 Pub. L. 111-5;
         7. sections 18A and 18B of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. sections 218A and 218B, and the associated FLSA authorities in sections 9 and 11 (29 U.S.C. 209 and 211) to issue subpoenas and conduct investigations under sections 18A and 18B, and any other authority and responsibilities granted the Secretary to enforce sections 18A and 18B of the FLSA;
         8. sections 45R and 4980H of the Internal Revenue Code, 26 U.S.C. 45R and 4980H; and
         9. as directed by the Secretary, such additional Federal acts similar to or related to those listed in paragraphs (a) through (h), above, that from time to time may assign additional authority or responsibilities to the Department or the Secretary.
      2. to request information the Internal Revenue Service (IRS) possesses for use in connection with the administration of Title I of ERISA of 1974.
   2. The Solicitor of Labor is responsible for providing legal advice and assistance to all officials of the Department relating to the administration of the statutes listed in paragraph 4.A.(1) of this Order, for bringing appropriate legal actions on behalf of the Secretary, and representing the Secretary in all civil proceedings. The Solicitor of Labor is also authorized to request information the IRS possesses for use in connection with the administration of Title I of ERISA.
   3. The Inspector General is authorized to request information the IRS possesses for use in connection with the administration of Title I of ERISA.
5. Reservation of Authority.
   1. The submission of reports and recommendations to the President and the Congress concerning the administration of the statutes listed in paragraph 4.A.(1) of this Order and responsibilities under Subtitle C of Title III of ERISA are reserved to the Secretary.
   2. The Pension Benefit Guaranty Corporation carries out responsibilities under Title IV of ERISA.
   3. Except as expressly provided, nothing in this Order limits or modifies the provisions of any other Order, including Secretary's Order 4-2006 (Office of Inspector General).
6. Effective Date. This Order is effective immediately.

/s/ Hilda L. Solis
Secretary of Labor

December 21, 2011

Memorandum of Understanding Between the Departments of Justice and Labor Relating to the Investigation and Prosecution of Crimes and Related Matters under Title I of the Employee Retirement Income Security Act of 1974

It is hereby agreed and understood between the Department of Justice and the Department of Labor as follows:

Whereas Title I of the Employee Retirement Income Security Act of 1974 (P.L. 93- 406, 88 Stat. 829, 29 U.S.C. 1001, hereinafter referred to as "the Act") imposes certain duties and responsibilities upon the Attorney General and the Secretary of Labor with regard to prosecution of crimes and related matters arising under the Act; and

Whereas, section 504 of the Act imposes upon the Secretary of Labor the responsibility for conducting investigations of persons who have violated or are about to violate any provision of Title I of the Act or any regulation issued thereunder; and

Whereas, section 506 of the Act provides that the Secretary of Labor may make interagency agreements to avoid unnecessary expense and duplication of functions among government agencies and ensure cooperation and mutual assistance in the performance of his functions under the Act; and

Whereas, section 506 of the Act provides that the Attorney General or his representative shall receive from the Secretary of Labor for appropriate action such information developed in the performance of the Secretary's functions under Title I of the Act as may be found to warrant consideration for criminal prosecution; and

Whereas, it is desirable and essential that the areas of responsibility and the procedure to be used in investigations and prosecutions of offenses arising under the Act should be the subject of a formal agreement between the Departments;

1. Criminal Prosecution

   All cases involving violation of criminal provisions of the Act will be prosecuted by the Department of Justice. Those cases investigated by the Department of Labor which may warrant criminal prosecution will be referred to the Management and Labor Section, Criminal Division, Department of Justice.

2. Investigations of Matters made Criminal by the Act

   Subject to specific arrangements agreed upon by the two Departments on a case-by-case basis, investigations of criminal matters under the Act will be conducted as follows:

   1. The Department of Justice will investigate all matters arising under 18U.S.C. 664 (theft or embezzlement from employee benefit plan), 1027 (false statements and concealment of facts in relation to documents required by the Act) and 1954 (offer, acceptance, or solicitation to influence operations of employee benefit plans).
   2. The Secretary of Labor will either on complaint of a violation or on his own motion investigate through his own staff all matters that may form the basis for possible criminal action under section 501 of the Act. These matters include reporting and disclosure provisions under Part I of Title I of the Act and any regulations issued thereunder.
   3. The Department of Justice will under delegation from the Secretary of Labor investigate those criminal matters arising under:
      1. Section 411 of the Act (prohibition against certain persons being a consultant to, employed by, or holding office in an employee benefit plan and against allowing such persons to act as a consultant to, be employed by, or hold office in an employee benefit plan).
      2. Section 511 of the Act (interference with the rights of a participant or beneficiary by fraud or coercion).

3. Parole Board Proceedings

   The investigation and presentation of issues concerning the appropriateness of a grant of a certificate under Section 411(a) of the Act to a person by the Board of Parole of the Department of Justice will be the responsibility of the Department of Labor, including appearances before the Board of Parole.

4. Instructions

   So that the terms of this Memorandum of Understanding will be effectively performed, both Departments will issue instructions for the guidance of their officers and employees in the matters referred to in the preceding paragraphs, such instructions to be submitted for comment to the other Department prior to their issuance.

5. Adjustments

   Periodic reviews of this agreement will be made to determine whether any adjustments are desirable in light of experience under the Act.

/S/ Peter J. Brennan
Secretary of Labor

/S/ L. N. Silberman
(Acting) Attorney General
February 5, 1975

February 8, 1975

Whereas, the Employee Retirement Income Security Act of 1974 (P.L. 93-406; 88 Stat. 829), the Occupational Safety and Health Act of 1970 (P.L. 91-596; 84 Stat, 1590), and the Farm Labor Contractor Registration Act Amendments of 1974 (P.L. 93-518; 88 Stat. 1652), each provide that except for litigation in the Supreme Court of the United States and the United States Court of Claims, attorneys appointed by the Secretary of Labor may represent the Secretary in civil actions, subject to the direction and control of the Attorney General;

Whereas, this memorandum has been entered into in accordance with the legislative history of the aforementioned provisions; and

Whereas, satisfactory cooperative relationships exist between the Civil Division of the Department of Justice and the Department of Labor with respect to the conduct of litigation under other statutes administered by the Department of Labor;

Now, therefore, the following memorandum of understanding is entered into between the Attorney General of the United States and the Secretary of Labor for the purposes of promoting the efficient and effective handling of government litigation concerning these statutes.

1. It is the intention of the Attorney General to delegate primary litigative responsibility for the preparation and presentation of most civil cases arising in the district court and courts of appeal under the Occupational Safety and Health Act of 1970, the Employee Retirement Income Security Act of 1974, and the Farm Labor Contractor Registration Act of 1974, to attorneys appointed by the Secretary of Labor. The delegation of primary litigative responsibility shall, in the normal course, include the preparation and filing of all papers, the conduct of trials and the presentation of oral arguments. These activities shall be performed with the cooperation and assistance of the United States Attorneys and the Civil Division of the Department of Justice and be subject to the direction and control of the Attorney General.

2. There will be, however, a limited number of cases in which primary litigative responsibility may be retained in the Civil Division of the Department of Justice.

   The criteria for retention of primary litigative responsibility are:

   1. Cases raising significant issues concerning the validity or construction of statutes or important governmental regulatory schemes;
   2. Cases having a significant impact on, or which can be expected to have a significant impact on, the government as a whole, or on agencies, or programs of agencies, other than the Department of Labor.

3. To facilitate determinations by the Assistant Attorney General for the Civil Division as to the delegation of primary litigative responsibility, the Department of Labor shall, as to any case subject to this memorandum, provide the Civil Division with:

   1. A copy of any claim, complaint or petition for review proposed to be filed by the Department of Labor;
   2. A copy of any complaint, responsive pleading or petition for review filed by a party to litigation other than the Department of Labor, whenever such pleading has not otherwise been served on the Attorney General;
   3. Immediate notice should a case, the primary responsibility for which has been delegated to the Department of Labor, come within the criteria of paragraph 2, supra, during the course of the proceedings in that case;
   4. A memorandum proposing an appeal be taken from a district court from a decision adverse to the government; and
   5. A memorandum describing any case in which a district court decision favorable to the government has been appealed by another party to the litigation.

   The Department of Labor shall provide the Civil Division with all of the material necessary for a determination as to the delegation of primary litigative responsibility within a reasonable time. The Assistant Attorney General for the Civil Division shall make the determination within 20 days time of receipt of the above material or within such reasonable time as the exigencies of the situation demand.

4. In each instance where the Civil Division determines to retain primary litigative responsibility for the handling of litigation under the criteria set forth in paragraph 2, supra, it shall be the responsibility of the Assistant Attorney General for the Civil Division to set forth in writing in a communication to the Solicitor of Labor the basis for the retention of primary responsibility and the reasons therefore. If the Solicitor of Labor disagrees with any such determination, he shall present his views to the Deputy Attorney General who shall have final authority to resolve the matter.
5. In the conduct of any litigation subject to this agreement, regardless of where primary litigative responsibility is reposed, Department of Justice and Department of Labor attorneys will cooperate and collaborate in the preparation and representation of such actions and the Attorney General will retain the final authority to determine, where appropriate, the government's litigating position.
6. This memorandum is intended to provide a general description of the delegation of litigation responsibility. Decisions regarding the implementation of this agreement, including the development of special procedures for the handling of cases in which circumstances require the immediate filing of a pleading, are to be made by the Solicitor of Labor and the Assistant Attorney General for the Civil Division.
7. Nothing in this agreement shall affect any authority of the Department of Labor to take action under the statutes subject to this agreement, other than the instituting or conducting of litigation in court under such statutes.
8. Nothing in this agreement shall affect any authority of the Solicitor General to authorize or decline to authorize appeals by the government from any district court to any appellate court or petitions to such courts for the issuance of extraordinary writs, such as the authority conferred by 28 C.F.R. 0.20(b).
9. In order effectively to implement the terms of this Memorandum, each Department will issue to all personnel affected by its provisions a copy of this Memorandum. This Memorandum shall not preclude both Departments from entering into mutually satisfactory arrangements concerning the handling of a particular case.
10. This agreement shall apply to all cases filed on or after the date of approval of this agreement by the Department of Justice and the Department of Labor.

With respect to cases arising before the effective date of this agreement, the Departments of Justice and Labor shall enter into mutually satisfactory arrangements for the transfer of litigation responsibility in individual cases, consistent with the purposes of this agreement and where such transfer will not be prejudicial to the handling of such cases.

/S/ Laurence H. Silberman
Attorney General

/S/ Peter J. Brennan
Acting Secretary of Labor

February 11, 1975

1. Regional Directors have received re-delegated authority and assigned responsibility for ERISA enforcement activities, including authority to sign and issue certain subpoenas, among other powers. Regional Directors have discretion to further delegate certain signatory responsibility to selected staff. See EM section on Subpoenas. ↩
2. This authority has been re-delegated to the Deputy Assistant Secretary for Program Operations and the Director of the Office of Enforcement. ↩