PJ2009

Thank you! That was our understanding as well, so we will proceed in this manner. Appreciate your response.

Thank you! I also found an ERISA cite - Section 4041(e). We are covered!!

I know that a conversion of a DB plan to a DC plan entails the termination of the DB plan, in accordance with PBGC rules. Does anybody have cites for this? THANKS!

Yes, it provides death benefits. ERISA section 3(1)(A). That's what I thought. Thank you!

Hello, I have finally returned to this matter. It occurred to me that we are probably dealing with an ERISA plan and that the conversion right would have had to be communicated to all participants via a Summary Plan Description. I wonder if this would constitute constructive notice of such a feature? I also am thinking that perhaps ERISA would preempt any state laws on this matter. By the way, the life insurance policy does not require any kind of special notification to employees who terminate employment about their conversion rights, which are clearly spelled out in the policy. Any additional thoughts would be most appreciated before I get lost in Court Case Land. Thank you.

Is an employer-provided group life insurance policy considered an ERISA employee benefit for which an SPD is required?

Thank you. It is interesting that the DC LRMs are already 4 years old. I wonder when they will be updated!

Does anybody have a reference to where I can find the most current LRMs for DC and 401(k)s? Also, any idea when they will be revised? Thanks much!!!

Does anybody know what the deadline was for amending a plan to provide for non-spousal rollovers in 2008? I seem to recall that the provision could be implemented during 2008 at the option of the plan sponsor, but that there was a remedial amendment period. Or was it necessary to amend the plan by the end of the 2008 plan year? Thanks!

Again, many thanks for your valuable insights.

Interesting. The Instructions to the 5500 state that only one choice can be made. It appears that your position is that the choice would be multiple employer plan, with just one 5500. However, does this mean that the plan would cease to be a multiemployer plan, which has rules that are different from other types of qualified plans? I thought that perhaps it would make sense to file two 5500s - one for the multiemployer part and one for the multiple employer part. What are your thoughts on this rather unusual approach? I completely agree that other non-related employers would have to execute a participation agreement to become members of the multiple employer arrangement. Thank you.

Thanks much. Your reply is consistent with another response I received to an earlier similar question. The definition of a “multiemployer plan” is a plan to which more than one employer contributes by reason of a collective bargaining agreement. The fact that there may be non-union employees participating or even non-union employers does not change the characterization of the plan. For example, it is not uncommon to have a trade association that is the sponsor of a multiemployer plan also participate as a contributing employer, even though the association itself is not union. It is highly unusual, however, for a typical multiemployer plan to have other non-union employers participating. Generally, the sponsoring unions do not like to see that. It is very common to have non-bargaining unit employees (NBU’s) participate in a multiemployer plan. If a multiemployer health and welfare plan contains too many NBU’s, it may become a MEWA, which has several ramifications. The plan would only file one 5500, and the plan rules would normally apply to all contributing employers, unless the trustees created separate rules. Any non-union employer participating in such a multiemployer plan should be required to sign a participation agreement, which would set forth the rules under which it participates, and these rules could be different than the rules that apply to the contributing union employers.

Very helpful. Just a follow up. Could the Form 5500 be designated as a multiemployer and multiple employer plan? In the case of a filing for a multiple employer plan, do you think separate schedules are required for each adopting employer with respect to the non-bargaining unit employees? Thank you!

The multiemployer 401(k) plan will be amended to include non-union employees of participating employers. It appears that this will cause the plan to become a multiple employer plan as well. Has anybody encountered such an arrangement? Would ADP/ACP testing and application of other qualfiication rules be applied by "carving out" the non-union group? Would each employer have to file a separate 5500, or only those with non-union participants? Would this cause the arrangement to CEASE to be a multiemployer plan? This is a new arrangment for me and I'm afraid there could be a number of landmines. Any insights would be most appreciated!

1. Should a revised H&W SPD include the new COBRA subsidy rules? 2. Should a revised H&W SPD include the new rules under the 2009 legislation (e.g., mastectomy under WHCRA)? 3. If so (and I think the answer is YES to both), does anybody know where sample language can be found? I would rather use model language that is IRS approved or at least "industry approved" rather than spend a lot of time reinventing the wheel crafting such languge from the statutes. Again, thank you everybody! It's always something...

Any thoughts? This is new to me and I haven't found much guidance on point. Thank you!

Can a collectively bargained, multiemployer plan be amended to allow non-union employees of other employers to participate in the plan? I would think that this would make the plan a multiple employer plan as well. If this is allowed, would the multiemployer plan rules only apply to the union portion of the "plan"? Also, would there still be just one 5500 for the entire "plan"?

An employee terminated employment and has sued the plan sponsor of a group-term life insurance plan for failure to notify the employee of his right to "convert" to an individual policy. Clearly, COBRA does not apply to life plans. My questions are: 1. Does ERISA preempt this claim so that it does not matter what State law may require (i.e., require conversion rights, require advance notice, etc.)? If so, there would be no remedy for the employee, because to my knowledge, ERISA does not require conversion rights or advance notificatin. 2. If the life insurance contract itself provides for the conversion right, but does not specifically require the plan sponsor to notify the former employee of his conversion rights, has the plan sponsor, by its failure to notify the individual, breached any "fiduciary duty"? I realize there are sub-issues galore, but I thought I would ask if anybody has encountered this issue and has any opinions that could help us navigate through this grey area. Thanks much.

This sounds like a reasonable, good-faith solution to me. If necessary, you can re-file in 2010.

Does anybody have a "sample" claims procedure or know where I might be able to find some good language? I have to update a large number of H&W SPDs and I know the old claims language is inadequate. Thanks again and have a great day!

Fortunately, we have a copy of a written action to terminate the plan as of 7/1/08 - prior to the acquisition. I think we can move forward with the plan termination. Would you agree? However, since the plan still exists in a frozen state, can we amend and restate the document back to 7/1/08, or should we use a 2009 date - January 1 or July 1? We would like to make the document effective on the same date as the board action so that we can avoid having to amend for any 2009 laws or rules. Thanks...

I will go out on a limb and "guess" that the two plans would be treated separately for purposes of implementing the PBGC maximum insured benefit. Does anybody agree? Disagree? Thank you all.

How can I tell if a given EB plan is an H&W plan or fringe benefit plan?

Ordinarily, I agree with you. Unfortunately, there are other issues. It's a non-amender and the client wants to clean it up and distribute the assets. We just want to choose an appropriate proposed termination date.

The 401(k) plan effectively terminated as of 12/31/08. No contributions have been made since that date and no new participants have been allowed to participate. In fact, the company no longer has employees, since the company was bought by another company that hired all of them. We are filing for a determination letter on June 30, 2009 and are not sure if the proposed termination date can be 12/31/08, or should we/can we use 6/30/09? Or does it even matter? Thank you!