• EBSA conducts fiduciary or criminal violations under ERISA.

A variety of violations can occur under The Employee Retirement Income Security Act of 1974 (ERISA). Some examples of fiduciary violations include the following:

• The failure of fiduciaries to operate the plan prudently and for the exclusive benefit of participants.
• The use of plan assets to benefit certain related parties in interest to the plan, including the plan administrator, the plan sponsor, and parties related to these individuals.
• The failure to properly value plan assets at their current fair market value, or to hold plan assets in trust.
• The failure to make benefit payments, either pension or welfare, due under the terms of the plan.
• Taking any adverse action against individuals for exercising their rights under their plans (e.g., being fired, fined, or otherwise discriminated against).
• The failure of employers to offer continuing group health care coverage to individuals for at least 18 months after leaving that employer.

In addition to the fiduciary violations, the Employee Benefits Security Administration (EBSA) also conducts investigations of criminal violations regarding employee benefit plans such as embezzlement, kickbacks, and false statements under Title 18 of the U.S. Criminal Code. Prosecution is handled by the U.S. Attorneys’ Offices. Title 18 contains three statutes which directly address violations involving employee benefit plans:

• Theft or Embezzlement from Employee Benefit Plan (18 USC 664),
• False Statements or Concealment of Facts in Relation to Documents Required by the Employee Retirement Income Security Act of 1974 (18 USC 1027), and
• Offer, Acceptance, or Solicitation to Influence Operations of Employee Benefit Plan (18 USC 1954).

ERISA also contains the following criminal provisions:

• 29 USC 411, Prohibition Against Certain Persons Holding Certain Positions;
• 501, Willful Violation of Title I, Part 1; and
• 511, Coercive Interference.

Persons convicted of violations enumerated in 411 are subject to a bar from holding plan positions or providing services to plans for up to 13 years.

Decisions to seek criminal action turn on a number of factors, including:

• The egregiousness and magnitude of the violation,
• The desirability and likelihood of incarceration both as a deterrent and as a punishment, or
• Whether the case involves a prior ERISA violator.