Labor & Employment Law Daily Wrap Up, DOL NEWS—EBSA rescinds guidance that had directed ‘extreme care’ regarding 401(k) plan investments in cryptocurrencies, (May 28, 2025)
Organizations Mentioned:Employee Benefits Security Administration
By Brandi O. Brown, J.D.
That standard, the Department now contends, is not found in ERISA and “differs from ordinary fiduciary principles thereunder.”
Today, the Employee Benefits Security Administration announced a new compliance assistance release related to 401(k) Plan investments in “cryptocurrencies.” Compliance Assistance Release No. 2025-01 rescinds a prior compliance assistance release issued in 2022 that had urged caution when it came to cryptocurrency.
The prior release, Compliance Assistance Release No. 2022-01, regarding 401(k) plan investments in cryptocurrencies, directed plan fiduciaries to exercise "extreme care before they consider adding a cryptocurrency option to a 401(k) plan's investment menu for plan participants."
“Extreme care” standard. According to today’s announcement, however, the standard of "extreme care" is not found in the Employee Retirement Income Security Act (ERISA) and differs from ordinary fiduciary principles thereunder. Today’s release memorializes DOL’s decision to rescind the guidance in full.
“Prior to the 2022 release,” the newest release explains, “the Department had usually articulated a neutral approach to particular investment types and strategies. Today's release restores the Department's historical approach by neither endorsing, nor disapproving of, plan fiduciaries who conclude that the inclusion of cryptocurrency in a plan's investment menu is appropriate.”
Citing Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 425 (2014), the release states, “When evaluating any particular investment type, a plan fiduciary's decision should consider all relevant facts and circumstances and will ‘necessarily be context specific.’”
Crypto dinner last week. The announcement by the Labor Department comes less than a week after President Trump held a dinner for “contest” winners who allegedly spent hundreds of millions on Trump’s cryptocurrency.
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