Key Takeaways
- EBSA’s 2026 agenda targets three rules that directly affect what your 401(k) can invest in and who decides: the alts rule (setting a fiduciary safe harbor for adding private equity and other alternatives to investment menus), a replacement ESG rule (restricting non-financial factors in plan investment selection), and final auto-enrollment regulations. Any of which could reach final rule stage before year-end. If you have a 401(k), your plan’s investment menu and the protections behind it are in motion right now.
The Department of Labor’s Employee Benefits Security Administration published its 2026 Unified Regulatory Agenda on Friday, July 4, listing 20 guidance projects that will reshape how your 401(k)’s investment options are chosen, who counts as a fiduciary when recommending what you do with your retirement money, and whether your plan will be required to automatically enroll you. Several of these rules have near-term target dates. A few could hit your plan before the end of the year.
The agenda is not legally binding. Agencies miss self-imposed deadlines constantly. But the 2026 list is specific enough, and the underlying rulemaking is advanced enough, that retirement savers and their advisors should be paying attention now rather than after the rules drop.
What the Alts Rule and ESG Replacement Mean for Your Investment Menu
The most consequential item for most plan participants is what EBSA calls “Fiduciary Duties in Selecting Designated Investment Alternatives”. Better known as the alts rule. Published in the Federal Register as a proposed rule on March 31, 2026, under RIN 1210-AC38, it drew more than 47,000 public comments before the June 1 deadline closed. EBSA is now in the final-rule phase and is analyzing those comments through August.
The rule’s core purpose: give retirement plan fiduciaries a clearer legal road map for adding alternative assets, including private equity, private credit, real estate, and infrastructure, to 401(k) investment menus. Under the proposed rule, the standard is process-based. A fiduciary who follows the rule’s safe harbor factors would be entitled to significant deference, reducing litigation risk from the kind of ERISA excessive-fee suits that have cost plan sponsors hundreds of millions of dollars in settlements over the past decade.
That sounds pro-saver on the surface. Read the fine print, and the picture gets more complicated. ERISA’s duty of prudence under Section 404 has always required that fiduciaries act in participants’ sole interest. The proposed regulation extends that framework to alternative assets, but critics, including the Economic Policy Institute in its June 1 comment, argue the safe harbor could give fiduciaries a false sense of legal protection on asset classes where information asymmetry and illiquidity make fair valuation genuinely hard.
For participants, here’s the practical consequence: if this rule finalizes, your 401(k) investment menu could include private equity or infrastructure funds within the next few years. Those products typically carry higher fees and longer lock-up periods than the index funds that currently dominate most plan menus. The DOL’s proposed rule is deliberately asset-neutral. It doesn’t say private equity is good or bad. It says that a fiduciary who follows the process can add it. Whether that process protects you depends entirely on the quality of the fiduciary running your plan.
Also on the agenda: the replacement ESG rule, formally titled “Prudence and Loyalty in Selecting Plan Investments.” A draft proposal is pending White House review, with a target release date of July 2026. Under the Biden administration, environmental, social, and governance factors could be used as tiebreakers in investment selection. The current DOL is expected to revert to the Trump-era first-term standard: only pecuniary factors count. If you work at a company whose plan recently added ESG-screened funds, that option could disappear from your menu in 2027 or 2028, depending on how quickly your plan sponsor responds to the final rule.
Auto-Enrollment, Auto-Portability, and the One Rule That Could Actually Put Money in More Accounts
Somewhat buried in the 2026 agenda is a SECURE 2.0 Act provision that matters more for long-term retirement security than either of the investment-menu rules: mandatory automatic enrollment for 401(k) and 403(b) plans established after December 29, 2022.
Section 101 of the SECURE 2.0 Act of 2022 requires newly established plans to automatically enroll eligible employees at a deferral rate between 3% and 10%, with automatic escalation of at least 1% per year up to at least 10%. Draft final regulations implementing Section 101 were submitted to the White House Office of Information and Regulatory Affairs on June 23, 2026, and the agenda shows a target release date of July 2026. That means the final rule could be out within weeks.
Here’s what that means for savers. Vanguard’s How America Saves 2026 report, published in June, found that 61% of Vanguard-administered plans already auto-enroll new hires, up from 34% in 2013. Among plans that auto-enroll, participation rates exceed 90%. Among plans that don’t, participation can run 30 to 40 percentage points lower. The plan structure is the difference, not the saver. Finalizing Section 101 extends that structural advantage to smaller and newer plans, where participation gaps are widest.
If you joined a plan established after December 2022 and weren’t automatically enrolled, your employer may not yet be in compliance. Ask your HR department whether your plan is subject to Section 101’s auto-enrollment mandate and what the implementation timeline is.
Also on the agenda: a final rule on the auto-portability exemption, targeting September 2026. Auto-portability addresses one of the biggest leakage points in retirement savings. When workers leave jobs with small balances, those accounts are often cashed out rather than rolled over, triggering income tax plus a 10% early withdrawal penalty under IRC Section 72(t) if the worker is under 59½. The auto-portability framework, developed under a proposed rule published in January 2024, would allow record-keepers to automatically move small stranded balances into a new employer’s plan without the worker having to take any action.
What the 1975 Fiduciary Definition Means at the Moment You Roll Over
All of this regulatory activity happens against a specific backdrop that the 2026 agenda doesn’t advertise: EBSA has now restored the 1975 five-part test as the operative definition of who counts as an investment advice fiduciary under ERISA.
That matters most at a single moment: the day your 401(k) becomes an IRA. In practice, that is when a broker or insurance agent walks you through what to do with your rollover. Under the 1975 rule, a one-time recommendation to roll over your 401(k) into an IRA, or to buy an annuity with those proceeds, does not automatically make the advisor an ERISA fiduciary. They aren’t giving advice on a “regular basis” to an ERISA plan, which is one of the five required elements under the old framework. That single appointment, with potentially hundreds of thousands of dollars on the table, falls outside ERISA’s fiduciary protections.
Broker-dealers operating under FINRA’s oversight are subject to the SEC’s Regulation Best Interest, which took effect in June 2020 and requires that recommendations be in the customer’s “best interest.” That is a higher standard than the old suitability standard, but it is not the same as the fiduciary standard that applies to SEC-registered investment advisers under the Investment Advisers Act of 1940. Annuity products sold in that rollover meeting are regulated by state departments of insurance under NAIC Model Regulation #275, not by ERISA at all.
If you’re working with a best financial advisors search or an advisor who pitches an annuity at rollover, ask directly: Are you a fiduciary under the Investment Advisers Act of 1940, or a broker-dealer operating under Reg BI? The answer tells you which legal standard applies, which regulator is on the hook, and what remedies you have if the advice goes wrong.
Fixed and indexed annuity rates are currently elevated by historical standards; best annuities from A-rated carriers are running 5.5% to 6.5% on multi-year guaranteed annuities as of July 2026, per marketplace data. That makes annuities a legitimate consideration in a rollover. It also makes this the highest-stakes rollover environment in 20 years, which is exactly why the regulatory vacuum around fiduciary status at the rollover moment matters.
What Savers Should Do Before These Rules Hit
The agenda is a roadmap, not a final rule. But several items are close enough to the final form that preparation makes sense now.
On investment menus: if your plan currently offers only broad-market index funds, that may change in the next few years. Ask your plan sponsor what alternatives are under consideration and whether any are in the pipeline. When alternatives appear, look at the fee schedule. A private equity fund charging 1.5% annually versus an S&P 500 index fund at 0.03% represents a 147-basis-point annual drag. On a $100,000 account over 20 years at 7% gross returns, that difference compounds to roughly $68,000 in ending balance.
On ESG: if your plan currently offers ESG-screened funds and you use them, keep an eye on whether those options remain available after the replacement rule is finalized. Plan sponsors will have time to transition, but not indefinitely.
On auto-enrollment: if you’re at a newer employer and weren’t automatically enrolled, don’t wait for the rule to take effect. Enroll now. The SECURE 2.0 auto-enrollment mandate affects plan design, not individual eligibility. You can contribute today regardless.
On rollovers: before you move a 401(k) to an IRA or into an annuity, ask the person recommending the move to confirm in writing whether they are acting as a fiduciary under the Investment Advisers Act of 1940. If they are a broker-dealer representative, Reg BI applies, not fiduciary duty. Both are legal. Only one requires them to put your interests ahead of their own compensation.
