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Perfect. That is just what I was looking for. Thanks for the help.

Anyone there?? I found the EBSA guidance which mentions only "eligible employees" but I would still like to hear from anyone else with an opinion on the matter.

The EBSA website has guidance on this topic along with model notices.

This is a multiemployer health plan that provides health care benefits to active union members and retirees who are not yet eligible for Medicare. A situation has arisen where a man retired and began paying for single retiree coverage. (The plan offers retirees single; single plus one; or family coverage.) His girlfriend is now pregnant and they are going to be married. He has requested to add both as dependents and begin paying the family rate. ERISA 701(f) would seem to indicate that he has the right to do so, but I would like to know the opinion of those who deal with this type of mess on a daily basis. The plan is silent on the issue. Thanks

No, that is the problem. Most of those involved either sent a check, or a check with a scathing letter critical of the DOL findings. No one admitted to a PT. Most owed only $100-$200 for things such as spousal meals, in-room movies, an extra day on a rental car, etc. Nothing too egregious.

A DOL audit of a plan revealed several minor problems with trustee expenses. The DOL claimed the Fund had paid improper benefits totaling $3,000. The fiduciaries in question paid the money back to the plan rather than go to battle over a nominal amount of money. With the closing letter, the DOL sent a copy of the form 5330 and notified the plan it was referring the case to the IRS for the possible imposition of the 15% excise tax. The problem I have is determining whether these trustees would need to file the form. Many of the issues cited by the DOL were debatable at best. There also was no administrative hearing on the issues. Thus, my question is who decides whether a PT has occurred and triggered the 5330 filing requirement? What procedure does the IRS follow when it gets a referral from the DOL? What is the best course of action for the trustees?

As a "wimp" who would rather be safe than sorry, I believe the answer is to file an interpleader action and let the court sort out this mess. I have used the settlement agreement approach discussed above, but believe the interpleader is the easiest and most cost efficient way to protect your plan. In fact, I recall there were some cases that made me question whether a settlement agreement could overcome the bright-line "plan documents" rule used in many of the Circuits. (My recollection is that the agreement would need to contain all the elements of a QDRO and be very clear as to the benefits being waived.)

There are literally thousands of cases on this issue. You need to seek qualified counsel. However, if you want to do some investigative work on your own, start with "The Developing Labor Law" books. They should be in any county law library.

I recently read..(although I cannot recall where).. that vacation accrual was not required under USERRA unless the employer granted vacation to other employees on leaves of absence. I'll try to find the cite.

The SUB fund would not appear to be exempt from the 503 claims regulations, but does any one know for certain whether they are covered by the claims/appeals regulations?

I recently heard of an instance in which fund counsel for a health and welfare plan signed a participation agreement and brought his office into the plan. Many multi-employer plans include non-bargained employees, but I have never heard this extend to service providers. Is this permissable? What issues are raised?

Sorry, that was obviously supposed to be Workers Compensation, not compaction. I think that has been banned unless you are in a right to work state.

We have an Ohio based JATC Fund that has been named as an "employer" in an Illinois Workers Comp claim. This Fund is somewhat unique in that Union members across several states can attend a three week training course and live on-site in Ohio. Under Ohio law, it is clear that our JATC is not a statutory "employer." Ohio gives the Fund the right (but does not require) to become part of the Ohio WC program. The Fund has always done so. Several months ago, a union member from an Illinois came to the training center. He didn't return from a weekend at home and later claimed he had hurt his knee. A few days ago, the Fund received word that a claim was being pursued under the Ilinois comp system. My questions to the attorney were as follows: 1. The trainee was not our "employee"...he was a union member who chose to sign an indenture agreement and receive training. 2. The Fund is not a statutory employer. While it participates in the Ohio system, it does not meet the definition of employer under Ohio law. 3. Jurisdiction. The indenture and injury occurred in Ohio. How does Illinois have any jurisdiction in the case. Any thoughts, suggestions, arguments???

We have always reviewed these claims on a case by case basis. Given the hurdles imposed by Knudson and the "make whole" line of cases, the DOL would have a very tough time holding a Board liable for compromising a claim. I just make sure the file is documented with the particular obstacles faced in attempting to recover the monies. The trustees are then asked to exercise their discretion. Think about it another way. Suppose a fund pursued all claims, regardless of size or potential problems with recovery. In my opinion, this would be a bigger problem as the expenses associated with the collection efforts on lousy cases could not be deemed "reasonable."

These trustees are union members who are not receiving full time pay from the plan, the union or any contributing employer. They spend 98% of their time working with their tools. Thus, when they attend a fund meeting, they lose wages and all fringes.

Under ERISA 408©(2) funds are permitted to pay "reasonable compensation" to trustees who suffer a loss in wages while attending meetings, conferences, etc. My understanding of this section of ERISA as well as the regulations is that the plan may compensate the trustee for the full value of his missed time...both wages AND benefits. Assuming the fund does not directly contribute to the applicable fringe benefit plans, is it "reasonable" to pay the trustee the full value of the wage and benefit package? Keep in mind that the plan can document the Davis-Bacon rates through the DOL or applicable state agencies.

Holy smokes...I didn't realize this was such a can of worms. Currently there is no spouse #2...only the participant and spouse #1 who are going through a divorce. When he retired, they elected a 50% QJSA in the amount of $950 per month. Thus, if he were to pass away, her benefit would have been $475 per month. Now that they are divorcing, he would like the plan to approve a QDRO granting her 50% of the marital portion of the benefit. This means she will receive only $300 of the $950 monthly benefit. I take the ATT/Hopkins decision to mean that this would effectively deny her a vested benefit. Do we avoid these concerns if the parties agree to a stream of payment QDRO that assigns the ex-wife the same amount of monthly benefit as her "vested" QJSA?

That's the question. The plan IS subject to the J&S rules, so what effect will a post retirement divorce have on the benefit of the ex-wife (who did not waive J&S protection)???

A participant retires from a DB plan with a 50% QJSA. He then runs off with his ex-secretary and divorces his wife. Absent a QDRO, does the divorce cancel any benefit the ex-wife would have been entitled to?

I think 97-15a is pretty clear that the receipt of commissions, fees, etc., in addition to an annual retainer is not permitted. However, it does indicate that these commissions, etc., could be used to offset hard dollars owed to the advisor. There must be full disclosure to the Board as a condition precedent to the offset.

Approximately 5 years ago one of our DB plans created an unreduced retirement benefit for those employees with 30 years of service who were at least 57 years old. Unfortunately, this was added to the definition of normal retirement age in the plan document. In actuality, it is an early, unreduced pension. We would like to change the plan to correct this error. However, there is some concern over the IRC and ERISA anti cutback rules. If this change were made, the employees would still have a right to the same form and amount of benefit, it just would not be characterized as a normal retirment. Thanks

I have been asked to bid on a plan that is outside of the state in which I am currently licensed. While the issues that arise under these plans are primarily under ERISA or the Code, I am hesitant to provide advice in a state where I am not licensed. How do others handle this? Does it depend entirely upon the PR code in the state where I will be traveling?

We have successfully challenged terminations before arbitrators due to a lack of notice from the company. My recollection is that the regulations require you to notify the employees of the method that will be used. If not, the employee is entitled to use the method most favorable to him or her. Also, be aware (if there are any union employees) that there are decisions from arbitrators reinstating employees who were terminated based on the application of 2 methods used by their employer. In other words, they began under a calendar year method, the employer shifted to a rolling 12 month calculation, and the employee would not have been terminated under the old policy. Many employers will wipe the slate clean when they make a conversion.

I understand the confusion... All of the DB plans I work with are multiemployer and set up as a "percentage of contribution" arrangement. That is, 1000 hours of service would earn you a benefit equal to a percentage of your contributions. However, this is a DB plan in which a certain level of contributions earns you either a partial or full credit. Approximately $1,200 in contributions earns you a 1/4 credit for the year. When a participant retires, the administrator multiples the total "credits" by a predetermined amount... roughly $90. Thus a man with 30 years of uninterupted employment should have a monthly benefit of $2,700. The problem in this case is that the union negotiated an hourly contribution rate that will never allow a member with 2200 hours of service to accrue a benefit. It is almost as if the hours worked are irrelevant. The member essentially has to accrue sufficent contributions to "buy" the credit.

Easy killer...I AM the lawyer. The Davis-Bacon act is not applicable. The root of the problem comes from the remedy section of the state's PW statutes, which suggest that underpaid wages or fringes are to be paid in cash to the employee, not the plan. As there is no caselaw, we may have to appeal. Our db plan is a multiemployer arrangement and definitely qualifies as a "bona fide" plan for PW purposes. There is no doubt that under ERISA we must grant the members vesting and service credits for all time worked...regardless of whether the contributions actually come in. On the bright side, the members get the amount due plus a penalty amount of 25%.