GBurns

WDIK, You mean that it really is partially correct??? Way back in 1967 I was 1 of 2 finalists for the position of "Trainee" Actuary for a large Insurance Company (also did pensions) but lost out because of a too active social life although I had everything else including the obsessions. Those were their actual words.

"If a participant represents himself as married, is it necessary to request a copy of a marriage certificate to verify the spousal consent?" No because he provides other related supporting documentation. Re " "Do you check all distribution forms against beneficiary forms?" and the other questions..... No, but you check anything that for some reason might not seem right especially if based on anything factual ot conflicting that you might know or suspect. Re: "Do you then demand a copy of a divorce decree in those situations? " All you have done with this question is to restate the original post from TLCPension but still without rendering an opinion. TLCPension, IMHO, you need to do whatever seems prudent based on readily available information at your disposal.

Those who mark "Widowed" usually already have a named spouse on some form among the documents. Those who mark "Single" although not questioned do not already have a form with someone elses name and sometimes signature. So while it is not very customary to question a "Single" unless other information indicates a different status, it is only prudent to question "Widowed" when there are documents that state otherwise.

Archimage Where did the "Opening Balance" in this "Retirement plan asset" Account come from against which you plan to record this debit?

What do you mean by "labor board" and "labor board guidelines"? in addition, that "the plan is monitiored by some outside agency" has no bearing on the issue. What is important is what the Plan Dcoument and SPD (the governing documents) say, which is why we referred you to the HR Manager. We referred you to the HR Manager not for his/her opinion but for what the governing documents say. The governing documents are what set the guidelines (assuming they follow the law) and also which determines whether anything can be waived or not. These issues are not subject to anyone's personal opinion or whims as to what they desire or feel like waiving etc.

As mroberts points out ask her for her proof. It is her duty to explain her denial of coverage or restriction on eligibilty not yours.

Is your plan a 403(b)? If not, what is it?

TAG, Good point, but while I have not looked it up, I can only remember 1 "victim" and he is quite capable of defending himself. Thanks.

JanetM, Instead of responding to all the issues in your post, which would only be my opinion, I will refrain, hoping that others will address both your post and mine, however there are a few items that I will ask you to reconsider: I say: What if the loan creates financial hardship - in this case person is buying house - so in addition to monthly mortgage they have loan payment. GB: From a financial planning perspective, this person seems marginally solvent and should consider whether or not they are purchasing beyond their means and their risk of default in the near future wnd the consequences. In addition IMHO the purpose of hardship w/d is to correct current situations, however, in your posted scenarion, the hardship is a future ocurrence (after the purchase) and therefore not currently a hardship. Does the plan allow hardship w/d for a possible future ocurrence (possible because it depends on the closing taking place)? ********************* "If participant takes loan from plan that debt, seen the same as credit card or auto payment." GB: I do not think that this is correct. Plan loans should not be taken into consideration. I know that none of the mortgages that I have seen take this into consideration not only because it does not appear on a credit report but also because as you posted "the loan is payable back to participants account". Maybe we have a mortgage person as a reader who can give a factual opinion on the industry practice. ********************************** Re your last paragraph. I leave that to the posters who read this Forum to decide who reads the posts before responding, whether the posts are factual, and what or who is rude.

Erisa 510 deals with discriminatory actions in benefits plans. EEOC, labor laws and Tort and contract laws deal with wronful termination regardless of cause. An employee who feels that they were wrongfully terminated and who feels that it was because of their "higher cost" to the employer would not have had a denial etc of benefits and therefore there is no ERISA 510 issue. The employee has a simple wrogful termination case. ERISA is irrelevant and ERISA 510 is an even more irrelevant cite. As you stated this has nothing to do with the issue so I again wonder why you posted the irrelevant and misleading cite in the first place?

TAG, You are quite correct and I thank you for posting your observation. If you look back at my posts you will see that on a number of times I have asked readers and the Moderator for such comments, but as you will see almost none were forthcoming, leaving the impression that there was absolutely nothing rude or unprofessional going on.

I cetainly hope that this post gets a number of responses from those who know the facts of similar cases. Over the years when I was active in 401(k) and financial planning etc I saw many cases but I have nothing but anecdotal references without facts and am not sure of how the various cases were ever resolved. Inherent in this post is the warning that even the "best" make horrendous mistakes. I have always wondered how some service providers even came to be regarded as being good much less the "best". Most that I have seen have been terrible yet many would have sworn by them. There was a recent thread on this Forum regarding the use of someone else's SS# by a plan participant, and in which I pointed out that SS# alone is not and should not be the sole identifier, but there were those who argued otherwise, now here we have this case. There is never any hard and fast rule that will always work, it is supposed that "to err is human" and that mediocrity has become the norm. The Record Keeper's (they changed what they should not have changed) fiduciary liability will most likely pay.

So What??? That is why you have lawsuits and subsequent discovery with depositions and testimony and cross examination and rebuttals etc . Have you forgotten the hows and why of lawsuits already? By the way, no one raised the issue of ERISA 510 and you were the one who raised ERISA. In any case, What would ERISA 510 have to do with wrongful termination of employment anyhow?

If insurance companies were able to or could do something about this type of thing they would have done so long ago. So talking to any insurance company about the negligence should not help even if you somehow got to someone with the authority to do so. You have already put the matter in the hands of an attorney, it is bad practice, disruptive and self-defeating to take any action that he does not authorize. However, are you sure that this attorney is experienced and competent in this particular type of issue. Malpractice litigation or debt adjudication (mitigation) are areas that require some specialization it is not an area for a generalist or someone who specializes in or regularly handles other areas of law. The debt and the negligence are two very different areas and I would find it hard to expect that this attorney can or should adequately handle both these areas. I think that your attention should be on getting the best legal assistance you can find, maybe you want to reconsider your approach. In my opinion, neither the hospital or the staff will take the matter seriously if there is not a lawsuit for a large sum. The mother can donate the money to charity if she wishes. In addition, she would most likely get better legal representation if there was more money at stake. After all she has to pay the hospital and so far I bet this attorney has not been free. Why is she willing to spend her own and her husband's hard earned money to correct a situation caused by a group that is willing to charge her and have not cared one bit about what happened?

Using your statement that termination "to reduce pension costs (e.g., to prevent an employee from vesting in a benefit) would be considered a violation of ERISA.", it would follow that to terminate to reduce health plan costs would also be considered a violation of ERISA, Would it not? I also pointed out that the employer would also have to face charges of possible unlawful disclosure of PHI and misuse of PHI.

First, if as you say, they are taking only minimum loans, doesn't that mean that they still have loan amounts available thereby disqualifying them from hardship withdrawals? In other words minimum loan means that they are not eligible for hardship w/d. Second, I meant that the participant should prefer plan loan over hardship withdrawal. Third, Have they really worked out the tax effect to their tax return? I bet that most of these $25K earners will (with the mortgage interest) now have more deductions etc than they can use (deduct) and so the tax and penalty of the hardship w/d will be a greater burden. Fourth, Why does the plan loan have any effect on mortgage qualification? As I pointed out before, they most likely need to get a different mortgage source, this one seems very questionable. Last, To whom is the 401(k) plan loan payable????????

I also do not see a HIPAA problem, however, I see potential labor or state privacy issues. Individual premium and coverage info is not needed for purposes of budgeting. Your Oracle or TPA can easily provide the total amount applicable to those employees in the various Depts. Leaving the calculation to the Dept is asking for errors. Giving the Dept this individual info leaves the way open for charges of discrimination, favoritism, wrongful termination etc decisions made against an employee allegedly because they "cost more" than another employee. A little research of Benefits Buzz and the Forums should bring out some case law related to this issue, if not other searches will do so.

Considering the cost differences between a hardship withdrawal and a plan loan, it seems that it would be very much worth their while for your employees to seek another source for the mortgages. In todays market mortgages are competitive motgages seem to be available all over the place. What is so special about this mortgage source that makes your employees want to pay extra and put up with such restrictions?

tonjer, Wouldn't a plan loan be better, provided of course, that this plan allows loans? If you do not have a loan provision, could one be put in place in time to help this employee? I have always thought that this was a better way to access money for most employees.

The current CBA might not address all retirees, if it does not specifically do so then I would look in all the CBAs. There are CBAs that have conditions only applicable to those governed by that particular CBA and not by subsequent CBAs effected after they retire. In those cases the effective CBA could be different for each set of employees.

You are selling your old primary residence which was replaced by a new primary residence, Why would capital gains be an issue?

That was exactly my point. Since I was not sure of what a 423 Plan was, rather than shoot off at the mouth, I simply asked. However, I did respond to what I was sure of, the accuracy of which you yourself have now partially confirmed (partially because as you point out "only certain amendments" need shareholder approval but ALL need Board approval). This was my entire post: GBurns Posted: May 7 2003, 07:10 PM Registered User User Group: Registered Posts: 866 User No.: 2663 Joined: 13-September 99 A change to a Plan would require Board approval but certainly not shareholder approval. What is a 423 Plan? *************************** Since that was my reply, the accuracy of which you now confirm, I have to wonder where you find any inaccuracies or irrelevancies that you are accusing me of in your statement "I have to say that you often are guilty of those actions of which you accuse Mbozek". What do you find wrong with that response that causes it to be one of your favorites? As Harwood now makes clear, the reporting would not show the SS# ans therefore the PA couls not be inaccurately reporting anyhow.

Whether the FEINs were being used for any business or not does not affect the 941 and UCT6 (or other state's equivalent). If you have no employees you have to file for a waiver of regular filing otherwise you have to file forms with zeros (or pay the penalty and then file). So there must be either a filing or a formal waiver of filing. Therefore the employer cannot suddenly have had employees appearing on the last 2 Quarters because those quarters would already have had either a zero form or a waiver already filed. The medical info is used for renewal not issue. Initial rates are as filed and renewals are capped regardless of experience. This is from memory, I really need to look it up to verify so do not hold me to it as yet.

mbozek, Why do I insist? ... Because it simply is. Notice (which means that you should readthe posts by others) that no one else disagrees. And I guess that you also did not read the links provided by Harwood nor did you take the hint to read Derrin Watson's Q&A. A PA does not hire employees and cannot correct employee's W4 or I9 etc all they can do is alert the employer. The US Supreme Court explained most of the issues in the link, If only you would read. As Jon Chambers pointed out "We advised that they should accept the participant's representation regarding ID, unless they knew IDs were fake" which was addressed to the employer not the PA. Where have you ever seen that a Plan Administrator who files a return with the information duly provided by the participant is held responsible under any part of the IRC or Treas Regs for the validity of that info? Filing a return with the info provided does not constitute an incorrect return under anything especially 6721. This is no different that if the employee fills out their info form with a typo or spelling their name differently and the PA uses that in filing the return. The fact that SSA or the IRS has a slightly or even very different name does not constitute an error etc in filing. I do not have to cite anthing, it is plain logic. Ask anyone who fills out returns for large employers, there are always a number of such discrepancies. I wish that you would not continually guess at things and keep citing irrelevant or erroneous things. Step back and think before engaging "mouth". There are many old sayings that you bring to mind but it would be impolite to mention them.

The employment issue is a separate issue from the Plan issue. Under the employment issue the employer has the obligation to verify and question the documents provided and the information given. If the employer knowingly accepts false or improper documents etc the employer has created its own legal problem. However, if the emplyee is employed and does become a plan participant, eligibility, vesting and distributions etc are issues that are not covered under Labor laws. In the same manner tax reporting whether payroll or plan is not a state or other labor law issue. If the employer subsequently finds multiple EEs in the same location with the same SS#, the first issue is HR competence. Next I would guess that the employees would have to be called in to provide corrected I-9, W4 and whatever else is required for employment. If the employees cannot provide the required information, then the employer would be allowed to terminate employment as allowed by applicable laws or report the misreporting to the authorities in the prescribed manner. If the Plan Admin. is the one noticing the discrepancies, I would advise that they inform the employer. Illegal employment is not the business or within the jurisdiction of the plan or plan administrator to attack or correct.