A 401(k) Plan ‘Alternative’ Proposal: Will DOL Safe-Harbor Provide Smooth Sailing?

Overview

On March 31, 2026, the Department of Labor (“DOL”) issued a proposed regulation (the “Proposed Regulation”) that addresses the duties that a fiduciary of a participant-directed defined contribution plan—such as a 401(k) plan (a “Plan”)—has under the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) when selecting investment options for Plan participants to choose in allocating their Plan accounts. The Proposed Regulation follows an executive order issued by President Trump in August of last year (the “Executive Order”) intending to expand access to alternative assets (such as private equity, real estate, private credit and digital assets) in Plans and also address “regulatory overreach” and “litigation risks” that have limited the offering of alternative assets in such Plans. Further information about the Executive Order may be found HERE.