hr for me

That always brings me back to an old argument we had with a client years ago about Date of Death on their conversion to SAP HR/Benefits. They wanted it to be the "date you were first fully dead the whole day". UGH! If you worked at all on 12/31, you were an employee on 12/31. Their argument was that if you were alive at all on a specific date, you were alive all day.

We are biweekly but our timekeeping systems can usually compile a report based on monthly dates (outside of payweeks) so you might look to see what timekeeping reports that they use and if they can report out differently. Because we were near the 50 FTEs I keep this calculation every month. And generally the months with more workdays meant a higher average and those with fewer meant a lower average. Unfortunately we have dropped in #s and now while we aren't close I still track it since we have a lot of very PT employees. I would think you would need to do something to capture the hours that don't all into the two pay period/paycheck months, because at some point, you will have two 3 pay period/checks months (and every 10th year or so you will have one month that has three paychecks or 27 for the year). Otherwise you are undercounting by 1/13th of your total employee hours. (an example of leaving out a whole paycheck would be October 2015 for us because our paychecks are dated 10/2, 10/16 and 10/30...if you went by either the week with the 1st or the week with the 31st, you would be leaving a whole pay period out of the calculation)

One would probably need to be very versed in both ERISA and state laws to come up with an actual example. It would have to be something that ERISA doesn't cover, but two laws differ on. My first random thought was the definition of a spouse/marriage prior to the federal SC decision requiring all states to cover spouses regardless of gender. Don't know if that is a good accurate one, but that is the first thing that came to mind.

You can use the funds from an HSA for normal personal use/hardship, but you would be liable for taxes and the 10% penalty on the amount. (some people depend on never being audited though) Other than that, I know of no other way to allow the employee to get the money back once it was sent to the HSA admin without being able to prove some "mistake in fact" (such as the employer did get a form for a real change in status and forgot to stop taking the deductions or sent a wrong deduction file for a prior pay period, etc( If the money was sitting in AP payroll, I guess an argument could be made to refund through payroll with regular taxes deducted, but not if there is no change of status under a café plan. And this is not something I would allow to be done at our company. Instead if the employee got to self direct to an individual HSA, I would ask for new account information. We however require all employees to use the same HSA administrator and only fund 1 time per year. They can transfer it however they are allowed. But again, maybe because I am in charge of payroll and benefits, I am still wondering how this money has been sitting somewhere for multiple payroll periods and no one noticed or communicated it to others. Not good audit trails.

Agree with My2Cents. I would also counter with if you leave it blank/none, are you saying that only ERISA governs and if ERISA is silent that no state law could be used to protect the sponsor? You would need to be sure you weren't marking out all states laws in the process. Because then you are like they said, adding a litigation issue that probably has nothing to do with the original purpose of the lawsuit. But I suspect like My2Cents states that there WOULD be a state that would and would the employer/corporation rather pick the state or let whoever is filing the lawsuit do so? I would think the employer/corporation would want to pick the jurisdiction as they would be more well versed in that state law. The decision to not put a state in just doesn't sit right with me. And I am not a lawyer either.

At most your check is for $50k. Again these admins deal with checks much much much larger than those. For example, my DH changed jobs and we asked for a rollover check sent directly to us for much more than your loan. That check never made it to us and it was coming directly from the 401k financial institution (not a Third party admin TPA) It was never cashed that we know of. We were re-issued another check within just a few business days and had no adverse repercussions from it personally. I have no idea whether anyone tried to cash the first check or not. All the check really had was my DH's name -- none of our account info, not his SSN, etc. If an employee of that firm wanted to scam money, that's definitely NOT the way to do it. And honestly it's a lot harder to go cash a $10k+K check than you seem to think. Any bank will record what account it goes into and will record a deposit to the feds/IRS. They might get a small amount back in cash but most banks won't cash for non-account-holders. So don't just think it is because of a TPA that that your check could get lost/stolen.

I am not saying the employer keep the funds at all. I am saying it is up to the participant and the HSA admin to find the money unless the HSA admin did notify payroll and payroll didn't notify the employer. You need to find out where in the process it failed. If the payroll company knew it was rejected and didn't inform the employer/HR/benefits, that is a failure. If the money is sitting in a payroll account vs the HSA account, you might have some leeway on refunding as wages on payroll. But you didn't answer my question as to whether your HSA falls under any Section 125 plan? Once they come out of the check, they go to the HSA and now the employer has no right to withdraw them on behalf of the participant. There is no "mistake in fact" on the employer's part since they were never informed by the participant that the participant wanted the deductions stopped. Since it doesn't sound there were notifications that raised any flags in the whole process for multiple payrolls, I am suspecting the regular process happened and the HSA admin continued to accept the contributions on a "closed" account. Hopefully that is the case. Otherwise you obviously need a better communication system for when HSA contributions are rejected. Otherwise right now you have a very large audit issue where money went out of the employer's accounts but never ended up where it was supposed to go. Who is comparing payroll deductions to the receipts at the HSA admin? Can the payroll provided give you copies of the deduction files/list/transactions that were sent to the HSA so that you can match it back to what the employer was charged each payroll period? Who is comparing the payroll totals to what is paid to the payroll provider, etc? Who is looking at the timing of the deductions vs the credits to the employees HSA accounts? I would sit down and map how/when the amounts are calculated and by whom and how they are transfered and then how the employers money works its way through the system for the same amounts and see where it went wrong. Again unless it went into the closed HSA, you have an major lack of audit of company funds issue.

Did the employer not get notice when transferring the contributions to the HSA administrator? Is it one single HSA admin for all employees or do you allow the employee to choose (much like say direct deposit)? I do different transactions that deal with accounts (EFTs and DDs) and we always get a pretty immediate notice that the account is closed (with 3 or so business days from the date of the transfer). Sometimes we get an updated account number if the participant just changed acct #s (say due to fraud). If the HSA admin didn't reject them, then I suspect the employee still has a balance there and would need to ask for another distribution. I don't see where it would be the employer's responsibility to get the refund and/or change the taxable records (W-2 wages, etc) of the employee since the employer was following the latest election. And no, I would not say closing an account is an election unless your enrollment paperwork states that it is. Is the HSA covered under a cafeteria plan? If so, it must follow those rules and change can't be made retroactively. To me, this sounds like this one is all on the employee, but I would want to know where the deductions were credited by the HSA holder.

I love when people who have absolutely no experience in the financial 401k business/processes decide they know the best way to handle 401k transactions and the laws that surround them. Not sure why you even came on here to ask. What you are stating is standard operating procedures for most employers and most 401k plans. There are protections there that you might not see or value, but it doesn't mean they aren't there and that there is no value to you, your employer or your assets. And honestly $10k in aggregate is nothing for most of these employees. They see much larger account balances/distributions and personal information than that. $10k won't even get them across a border nor sustain them for very long. Their annual bonuses might even be larger than that...mine were 20+ years ago!

The employer needs to speak with legal counsel. Part of the response might depend on precedents set. Do they or have they allowed other employees (non-FMLA related) to rescind resignations? If so, they would probably in this case have to do so also. If not, it could possibly be considered FMLA retaliation to treat her differently. This is one reason why some employers don't allow employees to stay through their whole notice period. But it sounds like they needed to keep her to train you. And it doesn't seem they were very vigilant at the beginning of the month on her absences there. There is a possibility she is still resigning and just trying to protect her time from August through 9/2 for some reason (pension plan/401k vesting, health care coverage, etc) The doctor filling out the FMLA form would have been the one to put the return date probably and so the employer needs to confirm with the employee about her resignation date. But again, I would check with legal counsel prior to doing so; that way the employer knows its options.

You might want to check with the textbooks used for CEBS certification. The ones I studied from were good at the time and I would suspect they have kept up to date with the best textbooks out there. But I haven't. Retirement Plan Design course uses: Retirement Plans 11th edition Allen, Melone, Rosenbloom and Mahoney Retirement Plan Management course uses the same text. It is pricey, but I found all my CEBS textbooks to be helpful in later years. This one is dated 2013 so it is pretty up to date. You might be able to find a used copy also.

Why did they have a "negative contribution"? Were there "negative wages"? And if so, what 2014 deferrals would they resubmit? I think we need more details on what actually happened.

I would also look at the dates that forms were signed. It sounds like the employer signed off on the distribution at the time, but where does that fall on the who May-July timeframe? I have to wonder though if the employee waited to request the distribution after she was already back on call.

Last time we terminated our 401k plan (2008 or so), the plan trustees could not be paid out until all the employees had been paid out. I actually thought it was a good policy to keep the plan trustees "in the game" until it was totally closed. Unlike when I found out (From the DOL/IRS) that there had been a plan back before 2005 that never got fully closed out and still had a small balance left. Definitely think it is hokey that the owners got out before this was possibly charged to everyone else.

One thing that might protect the original employer in question is that you said "since the beginning of operations". When did operations start? pre or post PPACA? It could be argued that if it was PRE that the policy didn't change BECAUSE of PPACA regulations. However, if it changed POST, the employer could definitely have an issue with holding back hours specifically to remove themselves from PPACA's coverage. Otherwise if they can show this was their mode of operation prior to the health insurance requirements, they might be safer. personal opinion --> Not every business is making enough money pay "normal benefits" to every or even most employees. Many small employers go to sleep hoping they can make enough to pay regular wages for the pay period. Not all CEOS/owners are taking huge salaries and lots of perqs. Now to go read the D&B files attached.....

Not sure that July is really even that popular of a time for rollovers!

Hopefully I can answer what I think you are asking. In all the plans I worked on that had an aftertax source, generally it was on the same type of participant chosen percentage of pretax plan compensation as any other contribution/deferral. For example purposes if a participant had pretax plan comp of $2000 in the pay period and wanted 4% to go pretax deferral that would be $80 deferred. If that same participant wanted 4% to go to aftertax contributions that would also be $80. So if there was only PS and aftertax, the participant would have made some choice each pay period as to how much to contribute. It is possible that election could have been a $ election rather than a %. Except wasn't it Pre-87, Post-86? That is the law changed at the end of 1986 and now required any distribution out of aftertax sources to include a prorata portion of earnings because participants had been allowed to just take their contributions and leave the earnings in the plan and not have to pay tax on any of them. So any aftertax contributions in the plan that you say is "pre-86" would be allowed to be withdrawn without having to take out any of the earnings associated (and would decrease the basis left) Every plan I worked on had information "buckets" that held a total basis of both Pre-87 and Post-86 contributions. Any contributions or withdrawals of aftertax affected those buckets. eta: if I remember correctly it was added into annual additions and tested under ACP with the ER match.

Have to agree with QDROphile that communication is confusing. I would have a separate 401k election form since the deferral percent is not an annual election, but can be changed throughout the year, right? I've not seen any 401k where it is an annual election, even back in the olden days when we processed quarterly on the mainframes!

We do this type of deduction for Health insurance premiums, so our employees get the last 2-3 payroll cycles (end of calendar year) "free". But I have never heard of such a thing for 401k deferrals. You might have some issues with your plan compensation definition since you would be using 100% of a whole year's compensation. And if you have employees who make varying wages throughout the year, their ADP might not be as close to their election on an annual basis as they might want it to be -- depending on which 2 payrolls don't have deferrals. I have to wonder if at some point the payroll cycles changed and the 401k wasn't updated to match. And I suspect you will have a lot of communication issues and misunderstandings. Enough that it would be worth it to fix it now rather than later. One last thing that we know from processing biweekly --- every 7-10 years, you will actually have a year with 27 payrolls....fun stuff!

Does your husband have FMLA protection as a caregiver for you for your serious medical condition(s)? Has he gotten the required documentation from your doctors if he needs time off to help take care of your issues? Or does he have FMLA for his own serious medical condition? If he tried to use it under his own, I can see where they would think he was committing fraud because he wasn't sick himself, wasn't visiting a doctor, etc. His sickness would need to rise to the level of a serious medical condition under FMLA for it to apply for him alone. The actual law for care for a family member is in section 825.124 if you want to search the actual FMLA law. It speaks of both physical and psychological care of the sick person. Whether the need you had (land lord/rent inspection) falls under that is open to interpretation. Actually employer's can ask why he is out to see if that time falls under the FMLA rules. They legally cannot apply FMLA protection to time that does not fall under FMLA because that would then take away time that would be protected later and the employee would get less than they deserve. If he took the time under FMLA and it is truly NOT FMLA, then they can discipline him for taking it, up to and including termination. And usage of any sick leave he still had available depends on what the employer deems it can be used for. Some employers allow it to ONLY be used for actual sickness of the employee, others allow usage for family member sickness and some allow it to be use for pretty much any reason. The best thing he can do is to consult an attorney local to your state that is familiar with FMLA matters.

Don't know the answer to your specific question, but having been in the 401k business since the early 90s and a participant in multiple different plans and recordkeepers (mostly through my spouse changing jobs often), I will unequivocably state that John Hancock was the absolute worst to deal with in every way. It took more than 2 months to get a simple distribution (lump sum to one rollover 401k) processed. Personally I think salespeople will say anything to get plans/employers to move but the proof is in how they do the work afterwards. I have not been impressed.

Yes, FICA still applies on the imputed income of the premiums, but not on any future payout of benefits.

[Putting on my payroll hat] While the employer may save in FICA currently on premium amounts, it might regret when there is an actual claim and a third party is paying out disability payments that are now taxable to both the employee and employer ( and FICA has to be considered at that time)......so more headaches from a payroll/W-2/tax form standpoint than a benefits standpoint. So you need to weigh current FICA savings with future FICA payments to truly see if there is a savings. If communicated well, the current taxes paid on premiums will be much smaller than the taxes paid on the wage payments should they then be taken. I would wait until an open enrollment and make the change as part of all that year's benefit changes/communications. That said, allowing a choice does mean that payroll has to have one taxable and one non-taxable deduction setup for a single benefit. Not tough, but can lead to mistakes, etc. So I tend to lean on doing it one way for all employees.

You might have some vesting issues if you 100% vested anyone at the time of termination. I suspect based on prior posts that you would not be able to take the 100% vesting away for the ER balances that currently exist.

I will totally admit that my DH and I only have his 401k (my employer doesn't have one). So we have two different TDFs related to both his age and mine. We put more of his salary away than we would if I also had a 401k (so we view part of the balance as mine) So I have to agree that it might be truly deliberate.