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All correct. It can work as long as the ERISA plan does not contain ANY provision which is contingent on activity in the Non-ERISA Plan. A Non-Elective 401(a) plan (employer non-elective) could sit alongside a Non-ERISA deferral plan. A Matching 401 plan would cause the deferral plan to be ERISA. (The matching would depend on saving in the deferral plan.)

I agree with ERISAPPLE and would also recommend never restating, no matter how many amendments you have over how long a period, unless the IRS decides to issue DL's again to continuing plans, e.g. in a window after a major law change. The reason I recommend never restating is that, in any sort of review of your plan documents, whether an IRS audit, review by independent auditor, or due diligence review in an acquisition, you will be better off having, as a separate document, the last executed plan document that had a favorable DL, and then all your executed amendments, even if those become numerous. In that way, review will be limited to the amendments and it will also be very clear which document is the subject of the letter. For administration purposes, you can prepare an unexecuted "working copy" that is effectively a restated document, but I would recommend not adopting that "working copy" or executing it.

As usual, we don't get the full story. ALL POSTERS OF MESSAGES: Please give the full story and you will get the best answers the quickest. What's missing here? What the employer trying to accomplish! Is he trying to eliminate any employees who have already met the requirements, or just apply it to future eligibles. My guess is the latter. Let's make that assumption for this query. Since we are past the 7/1 quarterly entry date and we are prior to the 10/1 entry date, there is no reason why this can't be amended as of today (right up until 9/30) to change to semi annual entry dates, and anyone who would have entered 10/1 will have to wait until 1/1/19 IF THEY ARE STILL HERE.

If the only thing changing is the entry date from quarterly to semi-annual, I don't see how any participants are affected. Anyone who entered 7/1/18 or earlier would still be in the plan with semi-annual entry dates. The ones affected are those who would enter 10/1/18 if the plan were not amended. If the amendment is adopted before 10/1/18, the plan can be amended to make them wait until the next semi-annual entry date (1/1/19) to participate. The employer might have an employee relations problem if they do it, but they can do it. I do wonder what they intend to accomplish with the change.