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DOL Final Regs on ESG Investments and Proxy-Related Rules: Key Issues for ERISA Counsel, Plan Sponsors, Administrators

ESG Factors, Tiebreaker Test, Investment Alternatives in Participant-Directed Individual Account Plans, Shareholder Rights

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, February 8, 2023

Recorded event now available

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This CLE webinar will provide employee benefits counsel, plan sponsors, and asset managers guidance on the new DOL final ESG investments and proxy-related rules. The panel will discuss key provisions of the final rules and challenges, the permissibility of ESG factors in investments, the impact on qualified default investment alternatives (QDIA), and clarity for duty of loyalty provisions. The panel will also provide insight into the tiebreaker test, investment alternatives in participant-directed individual account plans, provisions on shareholder rights including proxy voting, and next steps for plan sponsors and administrators.


In response to 2021 executive orders issued by President Biden, the DOL has issued final new rules relating to ESG investments for retirement plans. In light of these new regulations, employee benefits counsel, plan sponsors, and asset managers must review their plan investments, QDIA options, and investment policy statements and determine if changes to the plans' investment options or strategy are appropriate.

Generally, ESG investing may run afoul of ERISA duties of loyalty and prudence imposed on plan sponsors and investment fiduciaries in selecting investments on behalf of a retirement plan. This is mainly due to the impact of such investments on financial returns and risks to plan participants with prior DOL regulations prohibiting the inclusion of an investment fund or portfolio in a plan's QDIA with a focus on factors relating to ESG investments.

On Nov. 22, 2022, the DOL issued final rules that reverse the impact the prior regulations had on ESG investing by retirement plans. The final rules eliminate certain terminology that previously restricted ESG factors, clarify ERISA fiduciary duties in relation to ESG investing, ease the QDIA rules, and provide various changes to proxy voting rules for ESG investments.

Listen as our panel discusses critical factors for plan fiduciaries in selecting plan investments, modifying or developing investment policy statements for ESG considerations, the use of ESG-themed options in 401(k)-type plans and QDIAs, and best practices for plan sponsors and asset managers in pursuing ESG investments.



  1. Overview of new DOL final rules for ESG investing
  2. ESG considerations and vetting investment risks
  3. Considerations for drafting or modifying investment policy statements
  4. ESG-themed options in 401(k) and QDIAs
  5. Best practices for plan sponsors and asset managers


The panel will review these and other critical issues:

  • Key components of DOL final rules for ESG investments by retirement plans
  • Permissible ESG factors in investments in light of the final rules
  • ERISA regulations and requirements that must be followed by plan investment committees
  • ESG considerations and vetting plan investments
  • Minimizing fiduciary breach of duty claims stemming from ESG investment decisions
  • Drafting considerations for investment policy statements
  • The use of ESG in 401(k) plans and QDIAs
  • Techniques and best practices for plan sponsors and asset managers for ESG investments


Lichtenstein, Joshua
Joshua A. Lichtenstein

Ropes & Gray

Mr. Lichtenstein is a partner in the tax & benefits department in the firm's New York office and focuses on...  |  Read More

Remmer, Sharon
Sharon Remmer

Ropes & Gray

Ms. Remmer joined Ropes & Gray in 1998 and is counsel in the employee benefits department. She advises both...  |  Read More

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