Wall Street Wants to Change the Rules for Your 401(k): It Could Put Your Retirement at Risk

 

Financial firms want a bigger piece of the $10 trillion in America's 401(k) plans, and the Trump administration is planning a regulatory rollback to encourage less regulated and often riskier investments. 

Most Americans don’t look to their 401(k) plans for excitement or experimentation, instead relying on the promise that steady saving and sober planning will guarantee security in their golden years. But the Trump administration wants to transform the well-worn patterns of retirement investing. 

To do so, it is moving to weaken the main protection workers have over their retirement money. The man in charge of the regulatory rollback is an industry insider whose former clients are among the large companies likely to benefit from his plan.

Since taking office last year, President Donald Trump has loudly called for plans to include less-regulated — and often risky — investments like private equity and cryptocurrency. To achieve that goal, the administration is softening one of the strongest legal protections American workers have: the right to hold an employer accountable when retirement savings are mishandled. The change is designed to give employers cover if their workers’ 401(k)s are deflated by expensive, opaque or unproven investments.

“What they have done is lower the standard for everything,” said Ali Khawar, a former senior official at the Department of Labor, which is charged with enforcing the federal law that governs retirement savings.

Backing this push are Wall Street firms, which want a bigger piece of the $10 trillion in America’s 401(k) plans, and America’s largest employers, who want to avoid class-action lawsuits from their employees. They have a powerful ally in Trump’s pick to lead the effort at the Department of Labor: Daniel Aronowitz, who previously ran a firm that helped large companies protect themselves against worker lawsuits. Now Aronowitz is the one driving changes to the rules those same companies play by.

When the 401(k) replaced pensions as the main way Americans fund their retirement, the investment risk shifted from employers to employees. Instead of the promise of a monthly check, the 401(k) participant gets a tax-sheltered account, usually with an employer matching their contributions, but with no guarantees of how that nest egg will grow. Traces of the old system remain, however. Employers are responsible for overseeing the company’s plan. They choose all the financial service providers and have the final say on what investment options are available to employees. But it’s typically workers who pay for those services out of their 401(k) savings. And it’s workers who suffer from diminished savings if the plan has poor options.

There are plenty of pitfalls for 401(k) savers. The “recordkeepers” that administer 401(k)s may attempt to steer workers to their own in-house funds, whether they are the best options or not. They may sell advisory services of questionable value. And then there are the investment fees, which are the main cost to participants. These are charged as a percentage of each investment. Roughly, a 1% fee for a $10,000 investment would result in a $100 yearly charge. Recordkeepers — companies like Fidelity, Principal, Vanguard and Empower —  and other service providers often receive a cut of these fees. This means that they have the incentive to recommend more-expensive options. 

If employers are lax in their oversight, workers might find themselves overpaying to invest in funds that underperform. Even modest differences in fees or performance can, when compounded over time, make a huge difference in how much someone is able to save for retirement, potentially tens of thousands of dollars at the end of someone’s career. By the Labor Department’s own math, 1% in additional fees can shrink someone’s nest egg at retirement by 28%.

When overseeing retirement accounts, employers have a fiduciary duty to make prudent decisions and put their workers’ interests first. If they allow financial firms to fleece plan participants, they can be held responsible under the Employee Retirement Income Security Act of 1974, a pension-era law that now governs 401(k)s.

Over the last 15 years, employees have increasingly sued large employers over unnecessarily high fees or inferior investment options. Companies like UnitedHealth, Boeing, Verizon and General Electric, without admitting wrongdoing, chose to settle suits for tens of millions. Aronowitz has called the increased litigation a “con game” that misleads judges, argued that such cases should go before a specialized court and labeled the whole enterprise a “scam.” 

Over 90 of these class-action lawsuits against large employers were filed in 2025. To Aronowitz, that’s a big number — his former firm tracked and publicized the rise of these suits as part of its business underwriting liability coverage to employers — but it’s a tiny fraction of the more than 700,000 401(k) plans nationwide. 

ERISA says nothing about which types of investments are prudent; it sets a standard of care, not a list of approved options. It’s up to employers to use their judgment, and employers have generally been wary of allowing cryptocurrency, private equity or hedge funds onto their plans because they are more complex than the usual stocks and bonds, often untested and much more expensive. Nevertheless, Trump issued an executive order last year blaming the limited uptake on “regulatory overreach” and “lawsuits filed by opportunistic trial lawyers” and calling for new rules. 

Aronowitz, as head of the Employee Benefits Security Administration, the Department of Labor office that enforces ERISA, is responsible for following through. His most significant move is a rule to make it far harder for workers to sue. The proposal, which will likely be finalized later this year, outlines a set of factors for employers to consider before approving investments. Just following this process would entitle employers’ decisions to “significant deference” from the courts — a “safe harbor,” or legal shield, meant to guard those decisions from challenge. A company could load a plan with a high-fee private equity fund and be protected from suit as long as it showed it had followed the rule and considered the fees.

To opponents of the change, like Khawar, who was second-in-command of EBSA under President Joe Biden, this is a mere “check-the-box approach,” akin to a teacher awarding a math student an automatic A — even if the answer is wrong — because the student showed their work.

Aronowitz has bristled at this sort of criticism. “Absolutely not,” he said in April at an industry event. “Read the proposed rule. We require a rigorous, objective, thorough and analytical fiduciary process that must be documented.” 

At the same time, Aronowitz is also pulling back on policing plans’ investment choices. In April, EBSA released a bulletin updating its enforcement priorities. In addition to announcing that agency staff must now get Aronowitz’s sign-off before any major enforcement action, it set a new guideline for investigators. “EBSA must avoid cases that unfairly second-guess process-based fiduciary judgments,” the bulletin said, meaning investigators should not challenge an employer’s investment choices if the employer can show it followed the proper steps, regardless of the outcome for workers. 

Tim Hauser, a 34-year-veteran of EBSA who was the highest-ranking career staffer there before retiring last year, said such ideas undermine the heart of ERISA. Under both Republican and Democratic administrations, EBSA was “dedicated to protecting plan participants,” he said, but that has changed under Aronowitz. The ability of courts and regulators to hold employers accountable for using bad judgment when choosing 401(k) investments is “fundamental to this whole system,” Hauser said. “They are proposing to deprioritize it at the same time that they are encouraging plans to invest in more complicated, opaque investments. It’s infuriating.”

The shift at EBSA has also been evident in court. Over the last year, the Labor Department has filed amicus briefs — friend-of-the-court filings that lay out legal arguments for judges — in several class-action lawsuits on the side of the defendant company. In the past, the Labor Department’s briefs had generally sided with the employees. These amicus briefs can be influential. Recently, the agency interceded on Home Depot’s behalf in a case pending before the Supreme Court. The plaintiffs then dropped it.

A Labor Department spokesperson said in a statement to ProPublica that EBSA would prioritize “the highest-risk matters” in order to protect participants. 

In pushing for looser rules and easing enforcement, the Trump administration and Wall Street are aiming for much more than giving workers the option of investing in so-called alternative assets. They predict it will become common, part of a new normal.

In recent years, the typical 401(k) plan has settled into a pattern, one that’s proven popular with investors but less lucrative for the recordkeepers and asset managers that serve plans. Decades ago, actively managed mutual funds, where professionals pick investments and charge for doing so, were dominant. They carried higher fees, often above 1% of the amount in the fund each year. But over time, passive funds, which often track an index of stocks or bonds like the S&P 500, attracted investors with their promise to deliver the same or better results for fees often below 0.1%. 

Investment and administrative fees in 401(k) plans have, on average, steadily decreased. One main reason is the rise of passive funds, but another, experts say, is the threat of litigation. With cheap options broadly available, large companies might have a hard time explaining to a judge why they forced their employees to choose funds that cost 10 times more.

This decline has pinched profit margins in the 401(k) world, said Kai Richter, an attorney with Cohen Milstein who has long specialized in ERISA class-action cases. “So the financial industry is looking for other ways to make money.” 

Nonpublic investments like private equity are, as a rule, actively managed. That means higher fees. If 401(k) plans began to commonly include these investments, the long-term trend of lower fees would halt and perhaps reverse. 

Broad adoption of alternative assets is indeed the administration’s goal. One of the most consequential parts of a 401(k) plan is the default option, since most workers simply leave their money there. Usually, the default is a target date fund, which, based on the investor’s target date of retirement, gradually shifts its composition as that date approaches from mostly publicly traded stocks to mostly bonds, becoming more conservative and less risky as the person gets closer to needing the money. Target date funds haven’t changed much over the past two decades as they’ve soared in popularity. They offer all-in-one simplicity and, since they are often passive, low cost. Adding complex investments like private equity or hedge funds as a standard part of the mix would be a sea change. 

The proposed rule professes to be “neutral” as to what effect the new, lax standard will have on investments, but it confidently predicts that companies will include more alternative assets over time in 401(k)s. That, after all, is the point of the rule, to broaden access to “the potential growth and diversification opportunities associated with alternative asset investments,” as Trump’s executive order put it. After the rule is finalized, plans covering about 5 million participants will add new or modified target date funds that include alternative investments, according to the proposal, and the number will continue to grow every year. 

Over the past year, there’s been a wave of product announcements in the 401(k) industry as financial companies, taking their cues from the administration, have prepared to offer new options to plans. Major firms that manage private investments, such as BlackRock, Apollo and Goldman Sachs, have announced funds for 401(k)s that include private assets. 

Ahead of the proposed rule’s adoption, Empower, the second-largest recordkeeper, has been expanding alternative options through managed accounts where participants opt to have advisers shape their 401(k) portfolios. About 1,000 companies have agreed to offer these investments to their workers, Empower’s CEO said recently. 

But the ultimate effects of the administration’s efforts won’t be limited to alternative assets, and the outcome is far from certain. The proposed rule seems sure to meet legal challenges, and employers, even with Aronowitz’s assurances, might remain reluctant to overhaul their plans. Short of lawsuits, employers may fear blowback from their workers, who surveys show are content with traditional investment options. 

Paul Kiel, business reporter with a focus this year on 401(k) plans.