The Balance the Scales Act amends ERISA to require the Secretary of Labor to enter written agreements before providing what the bill calls “adverse assistance” to an individual — defined as assistance directed to an attorney for potential use in a civil action under ERISA section 502(a) — and to deliver copies of those agreements to any employer, plan sponsor, or fiduciary potentially affected. The bill also mandates an annual report to Congress that lists all such agreements and a detailed accounting of information shared, communications, and meetings, while allowing redaction of third‑party identifying information.
Separately, the bill adds an explicit statutory policy that Congress favors the voluntary sponsorship and maintenance of private pension plans. For employers, plan fiduciaries, and Department of Labor staff, the measure creates new notice and recordkeeping obligations, expands congressional oversight of how the agency interacts with plaintiff-side attorneys, and raises practical questions about confidentiality, administrative burden, and the scope of permissible DOL assistance.
At a Glance
What It Does
The bill adds subsection 504(f) to ERISA, requiring the Secretary to (1) enter a written agreement and give affected employers/plan fiduciaries notice before providing ‘‘adverse assistance’’ to an individual’s attorney; and (2) file an annual Congressional report containing copies of agreements (with limited redactions) and logs of information shared, communications, and meetings.
Who It Affects
Directly affects the Department of Labor/EBSA operations, plan sponsors and employers named as potential defendants in ERISA litigation, plan fiduciaries and service providers, and attorneys who represent employees in section 502(a) cases.
Why It Matters
It creates a formal process and public record for certain DOL interactions with plaintiff-side counsel, increasing transparency and congressional visibility while imposing administrative and privacy trade-offs that could change how EBSA supports private enforcement of ERISA claims.
More articles like this one.
A weekly email with all the latest developments on this topic.
What This Bill Actually Does
The bill instructs the Department of Labor to treat certain forms of help to individuals who may sue over ERISA benefits as a discrete category — ‘‘adverse assistance’’ — and to formalize that help through a written agreement. Before the Secretary provides that assistance, the Department must enter into a written agreement with the individual describing the assistance and send a copy of the agreement to any employer, plan sponsor, or fiduciary who might be directly and adversely impacted.
That notification requirement forces a moment of disclosure to prospective defendants before DOL’s assistance is delivered.
The statute defines adverse assistance narrowly: assistance or advice that is directed specifically toward an attorney for potential use in a civil action under section 502(a). Once such agreements exist, the Secretary must compile them and report to Congress annually.
The report must include a copy of each agreement (subject to permitted redactions), the agreement date, a detailed account of the assistance actually provided during the prior fiscal year, logs of verbal communications, and logs of meetings with dates, parties, modes, and the nature of any information exchanged. The bill requires the first submission within 60 days of enactment and then annual submissions by December 31 for each subsequent year.The Act also amends ERISA’s findings to add a clear declaratory policy that the law should promote voluntary plan sponsorship and maintenance.
That policy statement does not change fiduciary duties directly but signals Congressional intent that the Secretary’s practices should be reconciled with preserving employer willingness to sponsor plans. The bill includes an effective‑date clause making the new rules apply to assistance provided on or after enactment and offers a 60‑day cure window for preexisting arrangements if the Secretary completes the written agreement and notifications within that period.
The Five Things You Need to Know
The bill requires the Secretary of Labor to enter a written agreement with any individual before providing ‘‘adverse assistance’’—assistance directed specifically to an attorney for potential ERISA section 502(a) litigation—and to provide that agreement to affected employers, plan sponsors, or fiduciaries.
The Secretary must submit to Congress, within 60 days of enactment and then each year by December 31, a report listing every agreement in effect during the preceding fiscal year and including copies of the agreements (with redaction limits).
Each report must include granular logs: the information shared (source, type, amount, and date), a log of verbal communications (dates, parties, mode, and content summary), and a log of meetings (dates, attendees, mode, purpose, and information shared).
The report must identify the parties to each agreement but may not include identifying information for other persons (e.g.
employers, plan fiduciaries, service providers, or other potential defendants); the bill permits targeted redaction to protect those identities.
The bill adds a new policy clause to ERISA declaring that promoting voluntary sponsorship and maintenance of pension plans is a Congressional policy objective; the operational effect is to require answers in the report explaining how each agreement is consistent with that policy.
Section-by-Section Breakdown
Every bill we cover gets an analysis of its key sections.
Create subsection 504(f): collaboration framework
This provision inserts a new subsection into ERISA section 504 that governs how the Secretary collaborates with individuals and attorneys when the assistance is aimed at litigation. It imposes a pre‑assistance requirement: the Secretary must enter a written agreement with the individual describing the assistance and must provide that agreement to any employer, plan sponsor, or fiduciary who might be directly and adversely impacted. Practically, EBSA will need a template or standard process for drafting, signing, and delivering these agreements and for determining which employers or fiduciaries are ‘‘directly and adversely impacted.’
Define ‘‘adverse assistance’’
The bill defines the key term narrowly: ‘‘adverse assistance’’ means assistance or advice directed specifically toward an attorney for potential use in a civil action under ERISA section 502(a). That focus limits coverage to communications intended for plaintiff‑side litigation rather than all forms of agency assistance, but it leaves open line‑drawing questions (for example, communications sent to employee representatives who may later consult counsel). Agencies will need internal guidance on when speech is ‘‘directed specifically’’ to counsel to avoid inconsistent application.
Annual reporting requirements and required content
This subsection requires the Secretary to submit a detailed annual report to Congress about all agreements to provide adverse assistance. For each agreement the report must attach a copy (subject to permitted redactions), state the agreement date, and supply a detailed description of assistance provided during the fiscal year. That description must include what information was shared (with provenance and timing), a log of verbal communications, and a log of meetings with participants and purposes. Preparing those logs will create a new evidentiary and recordkeeping burden for EBSA and may require changes to case files and internal record retention policies.
Identification and redaction rules for reports
The bill requires the report to identify the parties to each agreement but bars inclusion of information that could identify other persons—explicitly listing employers, plan sponsors, fiduciaries, service providers, or other potential defendants. That creates a redaction regime EBSA must operationalize: deciding what to redact, how to anonymize entries, and how to balance congressional oversight with privacy and litigation sensitivity. The statute does not create a private right of action tied to these disclosures; instead it establishes congressional visibility into the agency’s litigation‑oriented collaborations.
Application to preexisting arrangements and express policy favoring plan sponsorship
The bill applies to adverse assistance provided on or after enactment but allows EBSA a 60‑day cure window: if EBSA enters the written agreement and provides the required notices within 60 days for an existing arrangement, it is deemed to have satisfied the pre‑assistance requirement retroactively. Separately, Section 3 amends ERISA’s findings to add a congressional policy that the law should promote voluntary establishment and maintenance of pension plans—an interpretive signal that EBSA and courts may cite when assessing the balance between enforcement assistance and preserving employer willingness to sponsor plans.
This bill is one of many.
Codify tracks hundreds of bills on Employment across all five countries.
Explore Employment in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Employers and plan sponsors — receive advance notice and copies of agreements so they can anticipate and respond to litigation‑related disclosures involving their plans, potentially reducing surprise and allowing defensive preparations.
- Congress — gains a regular, detailed window into how EBSA collaborates with plaintiff‑side counsel, improving legislative oversight of DOL’s enforcement posture and information flows.
- Plan fiduciaries and service providers — get formal notice when agency assistance could expose them to litigation, giving them a clearer record to assess risk and, if necessary, to contest or mitigate disclosures.
Who Bears the Cost
- Department of Labor/EBSA — must build processes to draft agreements, log communications and meetings in detail, redact sensitive data for reports, and produce an annual report; those activities create personnel and IT costs and new administrative workflows.
- Plan participants and individual claimants — could face a chilling effect if individuals worry that DOL’s assistance will trigger disclosures to employers or be memorialized in a congressional report; that may complicate claimant access to agency support or counsel coordination.
- Smaller plan sponsors and administrators — may bear indirect costs from increased disclosure and attention (e.g., reputational risk, the need to engage counsel earlier), and they lack the compliance infrastructure of larger plans to absorb information‑management burdens.
Key Issues
The Core Tension
The central tension is between transparency and oversight on one hand — giving employers, fiduciaries, and Congress clear advance notice and a public record of DOL’s litigation‑oriented assistance — and on the other hand protecting claimants’ access to agency help and preserving the confidentiality and effectiveness of enforcement collaboration; increasing one almost inevitably constrains the other.
The bill sits at the intersection of two legitimate objectives: increasing transparency about agency involvement in private litigation and preserving claimants’ ability to receive assistance and consult counsel without undue exposure. Operationally, the measure assumes EBSA can reliably distinguish ‘‘assistance directed specifically toward an attorney’’ from other helpful interactions; in practice that line is fuzzy.
For example, routine investigatory disclosures to employees or third‑party administrators may later be used in litigation, and the statute does not specify whether those are captured if they were not originally ‘‘directed specifically’’ at counsel. That ambiguity will force EBSA to write narrow internal rules or risk inconsistent application and potential legal challenge.
The reporting regime also raises privacy and confidentiality questions. The bill permits redaction of information that would identify other persons, but the required logs (dates, parties, modes, and content summaries) could still reveal sensitive operational details or personal data.
EBSA will incur costs to review and redact records, and defendants could argue that even redacted reports reveal privileged strategy or investigative steps. Lastly, the statutory policy favoring voluntary sponsorship signals Congressional concern about chilling enforcement, but it provides no objective test for when an agreement is ‘‘consistent with’’ that policy—leaving room for dispute between EBSA, plan sponsors, and legislators about how to balance transparency against enforcement effectiveness.
Try it yourself.
Ask a question in plain English, or pick a topic below. Results in seconds.