July 29, 2020

SWACCA joined the other union contractor associations that comprise the Construction Employers of America (CEA) in filing comments on the Department of Labor’s (DOL) Financial Factors in Selecting Plan Investments proposed rule. The comments focus on the impact the proposed rule would have on the ability of construction industry collectively bargained multiemployer plans to invest in projects that require 100% union labor and generate contributions to these pension plans.

In its comments, CEA explained that the proposed rule “would dissuade plan investments in funds that make housing, building, and infrastructure investments and require 100% union labor to be used on the projects.” CEA noted that “[t]hese funds are valuable investment opportunities for collectively bargained plans that produce rather unique pecuniary benefits that the proposed rule would at best discourage and at worst disqualify from consideration by fiduciaries in their investment selection process.” As a result, CEA urged DOL to “preserve the fiduciaries’ ability to make investments in such funds without establishing a new standard or burden.”

CEA also voiced concern that the proposed rule would “transform the well-established ‘tie breaker’ standard by raising the standard to an unrealistic threshold based on the Department’s belief that the likelihood two investments will be economically indistinguishable is rare.” CEA said the proposed rule “would practically destroy the tie breaker standard to the detriment of plans and participants.”

The comment letter, in its entirety, can be found here.

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