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Crypto in 401(k) Plans: The Department of Labor’s Guidance

The US Department of Labor (DOL) released fresh guidance on cryptocurrency investments for fiduciaries of retirement plans. This article describes the DOL’s guidance and its implications for retirement plans.

By Ben Bakkum

Quantitative Investing Associate, Betterment |

Published Apr. 14, 2022 | Updated Sep. 22, 2022

Crypto in 401(k) Plans: The Department of Labor’s Guidance Sep 22, 2022 10:58:00 AM The US Department of Labor (DOL) released fresh guidance on cryptocurrency investments for fiduciaries of retirement plans. This article describes the DOL’s guidance and its implications for retirement plans. The US Department of Labor (DOL) issued on March 10th what can be considered a warning to retirement plan fiduciaries that already or will in the future provide cryptocurrency options for 401(k) plan participants. In the wake of President Biden signing an executive order that directs the federal government to develop plans for regulating cryptocurrencies (and digital assets), the DOL published Compliance Assistance Release No. 2022-01, a note that details its perspective on crypto investments and hints that the department’s Employee Benefits Security Administration will conduct investigations of plans that currently offer crypto and related investment options. This article will describe the DOL’s guidance and its implications for retirement plans. What does the DOL note say? The release issued by the DOL primarily serves as a heads up of some of the concerning aspects of crypto investing that should be very carefully considered by plan fiduciaries in order to avoid a breach of their duty to “act solely in the financial interests of plan participants and adhere to an exacting standard of professional care.” The release does not explicitly forbid crypto and related investment options within 401(k)s but instead lists risks associated with such investments. It also conveys that fiduciaries must be able to answer how they “square” providing crypto, if offered, with their fiduciary duties in the context of these risks. The specific risks the DOL identifies are shown below. Risk Description Speculative and Volatile Investments The DOL warns that many crypto investments are subject to extreme volatility, exhibiting sharp swings higher and lower, with the potential that a large drawdown could significantly impair a plan participant’s retirement savings. The Challenge for Plan Participants to Make Informed Investment Decisions The DOL notes that difficulties exist for unsophisticated investors to “separate the facts from the hype” and make informed decisions when it comes to crypto, especially when compared with more traditional investments Custodial and Recordkeeping Concerns The vulnerabilities of much of the current crypto investment infrastructure to hacks and theft is a specific concern to the DOL given the severity of a plan participant losing the entirety of their crypto position Valuation Concerns The difficulty of determining a fundamental value of crypto investments compared to traditional asset classes, along with differences in accounting treatment and reporting among crypto market intermediaries, make up additional concerns to the DOL Evolving Regulatory Environment According to the DOL, “fiduciaries who are considering whether to include a cryptocurrency investment option will have to include in their analysis how regulatory requirements may apply to issuance, investments, trading, or other activities and how those regulatory requirements might affect investments by participants in 401(k) plans” What does this mean for Betterment at Work? 401(k) plans accessed through the Betterment at Work platform currently do not offer crypto investment options. As a 3(38) investment fiduciary, Betterment reviews investments on an ongoing basis to ensure we’ve performed our due diligence in selecting investments suitable for participants' desired investing objectives. As crypto markets and the regulatory environment around retirement plans evolve, Betterment will re-evaluate the suitability of crypto investments within retirement accounts. We will continue to monitor ongoing developments and keep you informed, similar to our efforts to track the DOL’s guidance for Environmental, Social, and Governance-related investing within retirement plans. The above material and content should not be considered to be a recommendation. Investing in digital assets is highly speculative and volatile, and only suitable for investors who are able to bear the risk of potential loss and experience sharp drawdowns. Digital assets are not legal tender and are not backed by the U.S. government. Digital assets are not subject to FDIC insurance or SIPC protections.

The US Department of Labor (DOL) issued on March 10th what can be considered a warning to retirement plan fiduciaries that already or will in the future provide cryptocurrency options for 401(k) plan participants. In the wake of President Biden signing an executive order that directs the federal government to develop plans for regulating cryptocurrencies (and digital assets), the DOL published Compliance Assistance Release No. 2022-01, a note that details its perspective on crypto investments and hints that the department’s Employee Benefits Security Administration will conduct investigations of plans that currently offer crypto and related investment options. This article will describe the DOL’s guidance and its implications for retirement plans.

What does the DOL note say?

The release issued by the DOL primarily serves as a heads up of some of the concerning aspects of crypto investing that should be very carefully considered by plan fiduciaries in order to avoid a breach of their duty to “act solely in the financial interests of plan participants and adhere to an exacting standard of professional care.” The release does not explicitly forbid crypto and related investment options within 401(k)s but instead lists risks associated with such investments. It also conveys that fiduciaries must be able to answer how they “square” providing crypto, if offered, with their fiduciary duties in the context of these risks. The specific risks the DOL identifies are shown below.

Risk	Description
Speculative and Volatile Investments	The DOL warns that many crypto investments are subject to extreme volatility, exhibiting sharp swings higher and lower, with the potential that a large drawdown could significantly impair a plan participant’s retirement savings.
The Challenge for Plan Participants to Make Informed Investment Decisions	The DOL notes that difficulties exist for unsophisticated investors to “separate the facts from the hype” and make informed decisions when it comes to crypto, especially when compared with more traditional investments
Custodial and Recordkeeping Concerns	The vulnerabilities of much of the current crypto investment infrastructure to hacks and theft is a specific concern to the DOL given the severity of a plan participant losing the entirety of their crypto position
Valuation Concerns	The difficulty of determining a fundamental value of crypto investments compared to traditional asset classes, along with differences in accounting treatment and reporting among crypto market intermediaries, make up additional concerns to the DOL
Evolving Regulatory Environment	According to the DOL, “fiduciaries who are considering whether to include a cryptocurrency investment option will have to include in their analysis how regulatory requirements may apply to issuance, investments, trading, or other activities and how those regulatory requirements might affect investments by participants in 401(k) plans”

What does this mean for Betterment at Work?

401(k) plans accessed through the Betterment at Work platform currently do not offer crypto investment options. As a 3(38) investment fiduciary, Betterment reviews investments on an ongoing basis to ensure we’ve performed our due diligence in selecting investments suitable for participants' desired investing objectives. As crypto markets and the regulatory environment around retirement plans evolve, Betterment will re-evaluate the suitability of crypto investments within retirement accounts.

We will continue to monitor ongoing developments and keep you informed, similar to our efforts to track the DOL’s guidance for Environmental, Social, and Governance-related investing within retirement plans.

The above material and content should not be considered to be a recommendation. Investing in digital assets is highly speculative and volatile, and only suitable for investors who are able to bear the risk of potential loss and experience sharp drawdowns. Digital assets are not legal tender and are not backed by the U.S. government. Digital assets are not subject to FDIC insurance or SIPC protections.