The U.S. Department of Labor (the “DOL”) proposed changes to its Voluntary Fiduciary Correction Program (the “VFCP”) in November for the first time since 2006.  The most significant change is the addition of a self-correction option for delinquent deposits of participant contributions and loan repayments.  The other changes clarify and expand certain existing aspects of the VFCP.  The DOL also proposed conforming changes to the prohibited transaction class exemption, PTE 2002-51, associated with the VFCP.

Although the proposal of a self-correction option has created a “buzz,” the proposed option would only be available if certain conditions are satisfied, including the following:

  • The employer remits the delinquent participant contributions or loan repayments within 180 calendar days of withholding or receipt;
  • The employer computes the “lost earnings” using the VFCP’s online calculator from the date of withholding or receipt and the lost earnings do not exceed $1,000; and
  • The employer files a self-correction notice with the DOL and retains certain records similar to the records that would need to be submitted with a filing under the VFCP today.

The notice requirement stands in contrast to self-corrections under the Internal Revenue Service’s Voluntary Correction Program, which does not require the submission of a notice to the Service following a self-correction.  The DOL is accepting comments on the proposed changes through January 20, 2023, and it remains to be seen whether the DOL loosens the proposed requirements for self-correction in response to comments.

Photo of Justin Alex Justin Alex

Justin S. Alex is a partner and a member of the Employee Benefits & Executive Compensation Group.

Justin advises private and public companies on all aspects of their employee benefits and executive compensation arrangements and plans.

He has particular experience in the sports…

Justin S. Alex is a partner and a member of the Employee Benefits & Executive Compensation Group.

Justin advises private and public companies on all aspects of their employee benefits and executive compensation arrangements and plans.

He has particular experience in the sports industry, including employment agreements for executives at the highest levels in professional sports and the benefits and compensation aspects of numerous transactions, such as the purchase or sale of the Buffalo Bills, Carolina Panthers, Denver Broncos, Miami Marlins, Real Salt Lake, OL Reign, Professional Hockey Federation, the Licensed Sports Group Unit of VF Corporation, Full Swing Golf, and ADPRO Sports and the merger of the USFL and XFL.

In addition to Justin’s general benefits and compensation practice, he spends a significant portion of his time advising employers and financial sponsors with respect to pension liabilities. He also advises the trustees of collectively bargained single-employer and multiemployer plans with respect to their administration, governance, and legal compliance.

Prior to joining Proskauer, Justin was an attorney in the Office of Chief Counsel at the Pension Benefit Guaranty Corporation (PBGC), where he gained significant experience with pension termination and underfunding issues. He also represented the PBGC in corporate bankruptcies and federal court litigation.

Justin is the co-editor of Proskauer’s Compensation & Benefits Blog and the Hiring Partner for Proskauer’s Washington office. He also serves on the Board of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.