Labor Department's 401(k) Rule Still Awaits White House Review

By Marcus Bennett

The U.S. Department of Labor submitted a final 401(k) investment-selection rule for White House review on Nov. 5, and it remained unpublished on Nov. 9. Four days later, the submission was still pending and classified as a final rule. The department listed no legal deadline, publication date, or effective date.

A classified final submission tells the public that the department treats the text as a final rule. It does not tell readers what duties the text contains. The March proposal can explain the proposed process, but it cannot support a claim that the policy is final.

The department had already moved away from its prior cryptocurrency posture. On May 28, 2025, it rescinded its 2022 cryptocurrency guidance. 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.

The proposal’s starting point

That leaves the final treatment of cryptocurrency unresolved. The March proposal set out a process-based safe harbor for fiduciaries selecting investment options, including funds exposed to alternative assets. It did not require 401(k) plans to add cryptocurrency. Instead, it said fiduciaries would retain discretion over investment choices.

Under the proposal, ERISA did not require or bar a specific type of investment option under Section 404(a)(1)(B), subject to other applicable law. The proposal therefore preserved discretion at the 401(k) option level while leaving other legal constraints in place.

The proposal identified six non-exhaustive factors:

• Performance
• Fees
• Liquidity
• Valuation
• Benchmarking
• Complexity

The comment period ended June 1. That record remains more detailed than the final text.

The order behind the review

Executive Order 14330, dated Aug. 7, 2025, directed the labor secretary to review existing guidance, 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.

It did not decide whether any 401(k) plan must hold cryptocurrency. Instead, it placed asset-allocation funds containing those holdings within a review of fiduciary duties and potential rules, regulations or guidance. Combined with the May 2025 rescission, the order left the department neutral on whether cryptocurrency belongs in a plan menu while opening a new policy track.

What does this change for 401(k) plan sponsors?

For now, it does not create a new requirement for plan sponsors to implement. The March proposal remains the public description of the framework, while the pending submission’s final text stays hidden. Fiduciaries cannot treat the submission as settled policy or cite it as an effective rule.

Under the proposal, choosing whether to add cryptocurrency remained a fiduciary decision, subject to other applicable law. The unpublished text leaves open whether that discretion changes for digital-asset funds or cryptocurrency products. Until the text and an effective date emerge, sponsors cannot determine what new standard they must follow.

The scale is broad, but the source does not establish cryptocurrency demand. U.S. 401(k) plans held $10.8 trillion in assets as of June 30, 2026. The figure covers all assets in the plans and is not an estimate of cryptocurrency investment. It does not show how much digital-asset exposure exists inside those plans. That distinction keeps the policy question separate from claims about present market adoption.

The next checkpoint is publication. Once White House review ends and the Labor Department releases the final text, sponsors can compare its cryptocurrency treatment with the March proposal and the rescinded 2022 guidance. Until then, there is no public legal deadline, publication date, effective date, or settled rule to implement.