Biden's nominee to head EBSA reflects aggressive rulemaking agenda

President Joe Biden's nominee to head the Labor Department's Employee Benefits Security Administration, Lisa Gomez, hints that the DOL is serious about rulemaking, industry lawyers say.

On Tuesday, the White House announced nominations for nine appointed federal positions, including Gomez’s. She is currently a partner at law firm Cohen Weiss and Simon, where she has been since 1994, and she has a extensive background working with retirement plans.

“I think Lisa Gomez is an excellent choice for EBSA’s assistant secretary,” Phyllis Borzi, who led the division during the Obama administration, wrote in an email. Borzi, who volunteered alongside Gomez at the American Bar Association, cited the nominee’s experience with a variety of employee benefit plan types, as well as her work with service providers. Gomez would be “an asset to the policy and regulatory development process” and “is a genuinely nice person,” she said.

“She is an outstanding lawyer, well versed in ERISA’s legal and regulatory framework and has advised plans, plan sponsors, labor and management representatives on compliance and other issues,” Borzi said. “Although I believe her commitment to making sure participants receive the benefits they were promised and earned, will guide her decision making at EBSA, I also think that Lisa will be able to evaluate the sometimes competing interests of the other stakeholders to help find workable solutions to the current challenges to retirement security we face.”

Someone with that much experience with the Employee Retirement Income Security Act will benefit the department, said Jason Roberts, CEO of the Pension Resource Institute.

“She has a deep understanding of ERISA, which is great,” Roberts said. “It’s always very positive when somebody has the technical expertise to appreciate what would otherwise look like a minor tweak to a regulation that will have all these ripple effects.”

The EBSA nomination signals “full speed ahead” for the Department of Labor’s efforts to finalize prohibited transaction exemptions and redefine investment advice, he said.

Gomez would replace acting EBSA assistant secretary Ali Khawar, who has been in the position since March 25. EBSA has not had a permanent leader since Preston Rutledge left the post more than a year ago.

The DOL has 11 items on the spring regulatory agenda for EBSA, at least seven of which would affect employer-sponsored retirement plans. Among them is a proposal that could be made later this year that would redefine "fiduciary."

Also on the agenda are forthcoming rule proposals that would revise or reverse Trump-era rules governing the use of environmental, social and governance criteria in retirement plans.

“EBSA is poised to have an active second half of the year,” George Michael Gerstein, fiduciary governance group co-chair at Stradley Ronon, wrote in an email. “Lisa’s experience will enable her to hit the ground running, which the DOL needs to implement the administration’s agenda, starting with ESG and continuing on to a new fiduciary rule.”

Last year, the DOL under former President Donald Trump ramped up its rulemaking related to retirement plans, largely at the direction of then-Secretary Eugene Scalia, who had recently been appointed.

Gomez did not respond to an interview request.

Given her background working with employers, there could be more focus on the entities that work with retirement plans, Roberts said.

“Her background appears to come exclusively from, or heavily from representing the sponsors of those plans, which is what most ERISA firms do,” he said. “From that perspective, you’re trained to scrutinize service providers.”

In its announcement, the White House highlighted Gomez’s “deep technical and practical experience in the multifaceted field of employee benefits law, representing various Taft-Hartley and multiemployer pension and welfare plans, single employer plans, jointly administered training program trust funds, a federal employees health benefit plan, supplemental health plans and [voluntary employee beneficiary associations].”

Gomez is a member of the AFL-CIO Union Lawyers Alliance and the International Foundation of Employee Benefit Plans, and she was previously the union co-chair of the American Bar Association Section of Labor and Employment Law Committee on Employee Benefits, among other roles.