J Simmons

Is there a greater proportion of the lesser paid employees that smoke? Is one who only smokes off hours subject to the extra premium charged for tobacco users?

There is a body of law to sort out which of two or more jurisdiction's laws ought to apply. This body of law is referred to as conflicts of laws. Depending on where a lawsuit is filed--Texas or Ohio--the answer might be different. That's because a court applies the rules of its state to decide which state's laws ought to apply, and different approaches are taken in different states. Many factors would come into play. A key one may be whether the contracts involved specify which state's law is to apply to the contracts and relationship between the parties. Obviously whether Texas law applies rather than Ohio law to the mail-order pharmacy program is of concern. It is perhaps worth getting the opinion of a lawyer who would be able to ferret out all the relevant facts as part of the legal consultation.

Larry, is it the participant's choice under those regs you cite or the plan administrator's? " However, the payor or plan administrator may instead permit the payee to remit to the payor or plan administrator sufficient cash to satisfy the withholding obligation." Treas Reg § 35.3405-1T, F-2. A.

I agree with Jim in both respects.

If there was also an amendment to the plan's governing documents as well, and the notice has the 'bells and whistles' needed, then yes the cessation would be valid and stop the SH matching obligations 30 days after that notice was provided. Yes, if done correctly. If so, then the entire plan year will be subject to ADP and ACP testing.

The fund can refuse the order (i.e., determine it not to be a QDRO) and ignore it if the order does not meet certain statutory requirements. One of those requirements is that the order specify clearly the portion of the benefits awarded to you. That "clearly" is in the context of what the specific plan provides. An order that may be clear in the context of the type of benefits provided under one plan may not be clear in the context of another plan the defines and provides benefits differently. The plan should provide you the opportunity for a fresh review of the rejection, by other fund officials that are not subordinate to those that made the initial decision to reject. If that doesn't work, you might go back to the divorce judge, asking for a new order, one that specifies a dollar amount. If the divorce judge cannot be convinced to enter a new order that does specify a dollar amount, then you might want to contact contact an ERISA attorney to look at the Fund's documents and advise you if it would be worth seeking a review of the Fund's rejection in federal court (in some parts of the country, court rulings allow the divorce judge to overrule the Fund's decision).

jmc51, do you have a weblink to access your article online?

If it contains all that it should (and nothing it shouldn't), is signed by the divorce judge and then presented to the plan administrator, that should do. However, the trick is in the details of making sure that the order has all that is required by the statutes, and nothing prohibited thereby, while accomplishing the split agreed upon and not 'leaving anything on the table' to be a windfall to the plan should certain scenarios unfold.

No news.

Federal common law of successor employer liability, developed in the field of the FSLA (minimum wage, overtime pay) are being applied by a few federal courts, primarily in the 7th Circuit. The federal common law of successor employer liability does not depend on their being any commonality of stock ownership for the asset purchaser to be on the hook for what the seller was obligated but did not contribute to the ERISA plan. Other factors apply in the analysis, and very well could hook B for making the SH Non-Elective contributions you describe.

Although not yet final regulations with which compliance is required, you might want to take a look at the IRS' most recent guidance on plan years for cafeteria plans. Prop Treas Reg § 1.125-5(d). Shorter than 12 month plan years are mentioned, but not longer than 12 month plan years.

Generally speaking, you can contain part of the a plan's SPD provisions in one document and other portions/rest in other document(s). However, doing so increases the chance that a plan-eligible employee will not receive all of the SPD materials he or she should. Final Treas Reg § 1.125-4(f)(3)(iii) allows you to add the new benefit option mid-plan year.

For HCFSA, highly compensated individuals is used rather than 414q HCEs. Highly compensated individuals are the highest paid 25%. For DCFSA, you do use the 414q definition for HCE in the testing. I think that current plan year compensation for first year participants is something new in the 2007 proposed regs for cafeteria plan testing.

Rev Proc 2008-50 addresses the use of forfeitures, if the plan permits, in a corrective allocation situation (6.02(4)©) but makes no mention of use of forfeitures for a corrective contribution. The fact that the use of forfeitures (if plan permits) is addressed in one context but not the other, and the numerous references throughout Rev Proc 2008-50 to corrective contributions couched in terms of such being made by the employer leads me to be a bit cautious on this issue. I would not use forfeitures for a corrective contribution unless the VCP reviewer expressly permits such. **grammar corrections**

If you are wanting them eligible from 10/1 to the end of the plan year for purposes of their compensation counting in the allocation of a profit sharing contribution for the year, then you have until the end of the plan year to amend retro and make them eligible as of 10/1. For 401k purposes, and their making elective deferrals, it is as a practical matter impossible to give them the retro opportunity to defer out of paychecks from paydays that have passed before the amendment.

You can leave the $5,000 balance in your existing HSA where it is. You may withdraw funds tax-free to pay for otherwise out-of-pocket health expenses whenever. If you withdraw during a year for which you do not have at least that amount in such health expenses, then the excess withdrawal will be income taxed. If it is before age 65, then you will also face a 10% tax penalty. Yes, you can enroll in the FSA offered by your new employer from 8/09 thru year end while yet leaving the $5,000 in the HSA. Your enrollment in the FSA will likely disqualify you from new contributions being made to the HSA after 07/09--although some FSA's are compatible with eligibility for contributions to an HSA. Eligibility for HSA contributions is determined on a monthly basis. The FSA funds may only be used to pay for unreimbursed health care costs incurred from the date of your employment (8/3/09) thru either the end of the FSA's plan year or until 2 1/2 months after the end of the FSA plan year, it depends on whether the FSA plan allows FSA funds to be applied against expenses incurred during that extra 2 1/2 months. The FSA funds cannot be used for reimbursement of health expenses incurred prior to the date the FSA takes effect, which could not be before your employment date of 8/3/09. If those health care costs relate to services provided in the same year that you withdraw funds from the HSA, then yes.

Under the QDRO you are considering, would those 3 months payment during the QDRO processing payment be payable as arrears once the order is determined to be a QDRO? If so, then yes, the 3 months payments would need to be segregated. If no monthly payments begin to accrue until after the order has been determined to be a QDRO, then you would not need to segregate for payments for the 3 months that QDRO processing is expected to take.

In addition to COBRA, you'll also face challenges with individual policies and complying with Ø HIPAA (Health Insurance Portability and Accountability Act) Ø USERRA (Uniformed Services Employment and Re-employment Rights Act) Ø FMLA (Family Medical Leave Act) Ø PDA (Pregnancy Discrimination Act of 1979) Ø ADEA (Age Discrimination in Employment Act) Ø ADA (Americans with Disabilities Act).

check this thread and this one

Keep pressing the U.S. Dept of Labor, specifically EBSA (Employee Benefit Security Administration). That's the agency with the legal authority. Keep pressing and be the 'squeaky wheel' as they are understaffed to handle all the situations like your father-in-law is facing given the current economic conditions.

Quarterly. You have a plan that has individual accounts that allow participant direction of investment. That means the benefit statements--of all benefits in the plan--are due quarterly.

Bill Presson's comment makes me wonder if it would be imprudent for plan fiduciaries making the arrangements with the TPA not to have a written engagement letter/contract that spells out those items that Sieve mentions?

Just a comment on terminology. I'm not sure I would call a participant loan that is distributed or 'canceled' incident to plan termination to be a default of that loan. For this reason, I agree with Jean that it need not be stated in the loan policy that the loan "defaults" on termination of the plan. The note is an asset of the plan that it has authority to distribute incident to the termination of the plan. (Several loan policies I have seen 'accelerate' the due date of the balance of interest and principal, but that's not quite the same as a default.) I also wouldn't consider loan repayments to be "contributions". If the loan was to a third party, the plan would continue to receive repayments of the loan from the date the plan is terminated until it distributed that 3rd party loan to an employee as part of the distribution of benefits to him or her (and then the 3rd party would make loan repayments directly to that employee). On the other hand, as Jean states, the plan may not accept contributions once the plan is terminated, at least not actual contributions.

Given the closeness of the date of re-hire after separation from service, was the re-hire prearranged? Were any other plan benefits distributed to this EE?

Well played, sir, well played.