As has been widely reported, the Assistant Secretary of the U.S. Department of Labor (DOL) responsible for the administration of ERISA has publicly suggested that DOL, in conjunction with the U.S. Department of Justice (DOJ), intends to invoke with greater frequency the criminal provisions applicable to ERISA plans. The government has not overlooked these provisions in the past; for example, reported 188 and 202 criminal investigations, leading to 115 and 101 indictments, respectively, in its FYE 2007 and 2008. The Assistant Secretary’s comments, however, appear to signal an increased emphasis on these provisions in the enforcement of ERISA.

The federal criminal provisions that explicitly relate to employee benefit plans are codified in two places. Three provisions are included in the U.S. criminal code.