Safe Harbor 401(k) Plan

[ErisaGeek]

Company wants to set up a safe harbor 401(k) plan for all non-union employees and a separate regular 401(k) plan for the union employees. Is it permissible to provide safe harbor contributions to non-union employees and subject the union employees to 401(k) testing since they would not receive any safe harbor contributions. Technically if there are no HCE's the union plan will anyway pass the 401(k) test. Also am I right that the 401(m) test is not needed on a union plan?

I know when you have one plan only Notice 98-52 allows you to disaggregate union vs non-union employees and provide the safe harbor contribution only to non-union employees and be non safe harbor for the union plan. Is the same reasoning true if they had separate plans one for union and one for non-union employees.

Thank you for your help.

[four01kman]

Yes to all three of your questions, provided the union has no HCEs.