Joel Shapiro: Even More on DOL and EBSA Proposed Guidance on Investment Selection

The Department of Labor’s new proposed safe harbor could fundamentally reshape how retirement plan fiduciaries think about prudence, litigation risk, and innovation. In this episode, you’ll hear a practical roadmap for committees and advisors to prepare now, before the rule is finalized.In this episode, Eric and Joel Shapiro discuss:Scope and intent of the DOL’s proposed investment safe harborPrudence as process and the shift from products to frameworksThe six-factor test: performance, fees, liquidity, valuation, benchmarking, complexityLitigation risk, meaningful benchmarks, and documentation standardsPractical guidance for plan committees, advisors, and the use of 3(21)/3(38) expertsKey Takeaways:The DOL’s proposed safe harbor is intentionally asset-class neutral and process-focused, offering fiduciaries a clearer roadmap rather than product-specific rules.Meeting the six factors—performance, fees, liquidity, valuation, benchmarking, and complexity—can create a presumption of prudence, but that presumption is still rebuttable.Proper documentation of analysis and decisions is just as critical as conducting a prudent process; “showing your work” is central to defending fiduciary actions.The proposal directly targets perceived abuses in litigation and encourages innovation (including alternatives) without sacrificing participant protections.Committees should honestly assess their internal expertise and strongly consider engaging a 3(21) or 3(38) fiduciary to help operationalize the safe harbor and ongoing monitoring responsibilities“For you as fiduciaries, don't pursue innovation for innovation's sake, or don't just jump on whatever the train is for the current trend; you still have to take control of the fiduciary wheel.” - Joel ShapiroLinks referenced during the podcast recording:DOL Fact Sheet DOL Proposed RuleJoel Shapiro Whitepaper90 North Newsletter Joel Shapiro brings over 30 years of ERISA and fiduciary consulting experience to the firm’s retirement advisory platform. A former ERISA attorney and seasoned consultant, he focuses on translating complex regulations into practical strategies for Plan Sponsors and strengthening the firm’s ERISA framework. He has advised large Plan Sponsors on plan design, fiduciary governance, and compliance, and is widely recognized for developing ERISA playbooks and best-practice fiduciary models that balance rigor with efficiency. Joel holds degrees from Tufts University, American University’s Washington College of Law (J.D.), and Georgetown University Law Center (LL.M. Taxation), and is a frequent speaker at national retirement conferences.Connect with Joel Shapiro:Website: https://www.wealthspire.com/ LinkedIn: https://www.linkedin.com/in/joel-shapiro-wealthspire/ Connect with Eric Dyson: Website: https://90northllc.com/Phone: 940-248-4800Email: [email protected] LinkedIn: https://www.linkedin.com/in/401kguy/ The information and content of this podcast are general in nature and are provided solely for educational and informational purposes. It is believed to be accurate and reliable as of the posting date, but may be subject to change.It is not intended to provide a specific recommendation for any type of product or service discussed in this presentation or to provide any warranties, investment advice, financial advice, tax, plan design, or legal advice (unless otherwise specifically indicated). Please consult your own independent advisor as to any investment, tax, or legal statements made.The specific facts and circumstances of all qualified plans can vary, and the information contained in this podcast may or may not apply to your individual circumstances or to your plan or client plan-specific circumstances.The opinions expressed by guests on the Be More Than a Fiduciary podcast are not necessarily the same as the opinions held by 90 North Consulting, or of Executive Director Eric Dyson.