Ex-Labor Officials Contest Trump’s Pro-Employer ERISA Campaign

Former high-ranking labor officials under Presidents Biden and Obama backed Lockheed Martin Corp. workers in a pension plan appeal, pushing back on the US Labor Department’s recent support for employers defending ERISA cases.

The department’s January brief, which argued the Lockheed retirees lack standing to challenge the company’s pension de-risking transaction, is inconsistent with the Employee Retirement Income Security Act and would undermine the statute’s standards by “insulating fiduciary conduct from review precisely when judicial oversight is most needed,” Phyllis Borzi and Ali Khawar told the US Court of Appeals for the Fourth Circuit in a Jan. 30 amicus brief backing the Lockheed workers.

Borzi headed the department’s Employee Benefits Security Administration during Obama’s term, and Khawar served as acting assistant EBSA secretary under President Biden. Their brief comes as the Trump administration is in the midst of a concerted pro-employer push across multiple ERISA cases.

The DOL’s recent ERISA briefs have supported companies in disputes with workers over 401(k) forfeitures, retirement plan investment performance, and the standard for showing loss causation under ERISA. The department is also seeking to withdraw a Biden-era brief in which it supported Yale University workers in a pending appeal over their retirement plan, saying it had “reconsidered its position” in the case.

The administration’s support for Lockheed shows “an effort is underway to limit the scope of ERISA’s private right of action,” Borzi and Khawar said in their filing. “If successful, that effort would return workers and retirees to the pre-ERISA regime, where meaningful remedies were largely unavailable and fiduciary misconduct often went unredressed.”

Pension Transfers

The Lockheed appeal gives the Fourth Circuit an opportunity to become the first federal appeals court to consider the recent litigation push targeting employers that have de-risked their pension plans with annuities from units of Athene Holding Ltd., an Apollo Global Management subsidiary that’s not a defendant in any of the cases.

The lawsuits say Athene uses a risky offshore structure that jeopardizes workers’ ability to receive benefits without compensating them for the additional risk. Judges have disagreed on whether these cases are viable, with several decisions—including the one favoring Lockheed retirees—centering on whether the plaintiffs have identified an injury giving them standing to sue.

In denying that these retirees having standing, the department urges a rule that would “foreclose judicial review of annuity-provider selections unless and until nonpayment of benefits becomes virtually inevitable,” Borzi and Khawar said in their brief. “That approach misconstrues both the nature of the injury alleged and ERISA’s remedial design, which included a private right of action to redress harms, without a virtually insurmountable burden of proof, to ensure that there was ready access to federal courts.”

“ERISA does not require participants to wait for financial collapse before seeking relief for fiduciary misconduct that has already increased the risk to their benefits,” they said.

Brown, Goldstein & Levy LLP represent Borzi and Khawar.

The case is Lockheed Martin Corp. v. Konya, 4th Cir., No. 25-02061, amicus brief 1/30/26.