Labor Department 401(k) Rule Awaits White House Review

The U.S. Department of Labor’s final rule on 401(k) investment selection remained under White House review Nov. 9, while the unpublished text leaves its treatment of cryptocurrency unknown.

The department submitted the rule for review Nov. 5. The submission is classified as a final rule and remained pending review four days later. No legal deadline, publication date or effective date is listed.

The March proposal described a process-based safe harbor for fiduciaries choosing investment options, including funds with exposure to alternative assets. It identified six non-exhaustive factors: performance, fees, liquidity, valuation, benchmarking and complexity. The comment period ended June 1.

The proposal would not require 401(k) plans to add cryptocurrency. It said fiduciaries would retain discretion over investment choices. Under the proposal, the Employee Retirement Income Security Act (ERISA) did not require or bar a specific type of investment option under Section 404(a)(1)(B), subject to other applicable law.

U.S. 401(k) plans held $10.8 trillion in assets as of June 30, 2026. That figure covers all assets in the plans and is not an estimate of cryptocurrency investment.

Executive Order 14330, dated Aug. 7, 2025, directed the labor secretary to review existing guidance and seek clarification of fiduciary duties, and, as appropriate, propose rules, regulations or guidance for asset-allocation funds containing alternative assets. The order defined alternative assets to include holdings in actively managed investment vehicles that invest in digital assets.

The Labor Department rescinded its 2022 cryptocurrency guidance on May 28, 2025. The earlier guidance urged fiduciaries to exercise “extreme care” before adding a cryptocurrency option. The department described its position as neutral toward fiduciaries who decide cryptocurrency belongs in a plan’s investment menu.