ok. I should know this, but.......can you use different eligibility provisions for different groups of employees? I'm thinking of one Y of S and 5 year graded vesting for one group and 2 years/100% vesting for another group. First group is predominately NCE - passes 410/401(a)(4). Second group all NCEs.

You will run 410(b) using the lesser of the eligibility requirements for the group. If you pass, fine. For vesting, that is a BRF issue you must test under those rules.

Thanks for getting back to me. The vesting makes sense. Section 1.411(a)-3(a)(2) specifically allows a plan to have more than one vesting sechedule and the separate vesting schedules are BRFs that must be tested accordingly. Is the rationale for eligibility testing the requirement that the plan must pass coverage as a whole and hence, you use the lesser of the eligibility requirements (in my case, 1 YOS), or is there something more specific in the regulations