An employer wants to pay end of year bonuses to employees based on a percentage of revenue they brought in to the company. This company also has a 401(k) plan with a dollar for dollar safe harbor match up to 4% of compensation. The owner wants to count the employer safe harbor match as part of the bonus.
For example, employee Z is due an $8,000 bonus. Employee Z is also due a $2,400 safe harbor match based on his deferrals into the plan during the year. The employer says the bonus is $8,000 minus the $2,400 safe harbor match that will be made on behalf of employee Z = $5,600 remaining bonus to be paid in cash to employee Z. So, employees that get a bonus and do not defer into the plan get their full bonus in cash.
Is this allowed, legally? If it is not allowed, can anyone provide a reference to a statute or something so we can explain to the owner why this is not allowed?
Thank you!