Military Leave Question

[Guest KD40]

We are trying to reallocate forfeitures for a plan. They have a 501 hour requirement attached to the receiving the allocation. One participant wa on military leave since Feb. 2003 and only reached 200 hours for the 2003 year.

Should he be part of the allocation since he was on military leave, no matter the number of hours he worked?

[jaemmons]

Assuming all other requirements are satisfied when they come back from military service, in order to accrue benefits under USERRA, the hours and compensation used for allocation accruals must be based on a reasonable estimate of what he/she would have earned had they not left for military duty. In some circumstances where the "rate of pay" cannot be reasonably estimated, the employer should use an average from the 12 months prior to the leave.

If his average 12 month hours is > 500, a 2003 forfeiture allocation should be earmarked for his account. I do not think the forfeiture amount is physically allocated to their account until they have returned to the employ of the employer and satisfied all other notice and leave requirements.

[QDROphile]

If you hold the amount in suspense until the person returns and is qualified, what if the person does not? How do you allocate then and for what year do you allocate?

Another way to do it is to allocate all the forfeitures without the missing participant and make up the amount the person would have received if and when the person returns. Yes, it costs the employer something, but the employer makes up all the other employer funded contributions based on imputed service and pay for the period as well.

I don't know what is best. It is disappointing that we don't have guidance for these issues. Military service is not that rare.

[E as in ERISA]

I don't think that they get forfeitures. See http://www.irs.gov/retirement/article/0,,i...9878,00.html#A5

[Belgarath]

I agree with Katherine.

[austin3515]

I would like to re-open this SEVEN YEAR OLD discussion because I have the same question today...

The IRS site provided by Katherine did not seem to be 100% on point. The crux of the question is this: What does 414(u)(8)(B) mean when it says:

Each period of qualified military service served by an individual is, upon reemployment under such chapter, deemed with respect to such plan to constitute service with the employer maintaining the plan for the purpose of determining the nonforfeitability of the individual’s accrued benefits under such plan and for the purpose of determining the accrual of benefits under such plan.

At least one reaosnable interpretation would be to follow jaemons advice. In fact, considering the subject matter (i.e., protecting the rights of military personnel) and considering the ambiguity, would not the only reasonalbe response be to do just that? i.e., impute some reasonable level of hours? You might even credit them 40 hours a week since they would have been working 40 a week in the military.

I can find dozens of references that say "military service shall be treated as continuous service" but I cannot find defined anywhere what that means...

[austin3515]

http://frwebgate.access.gpo.gov/cgi-bin/us...48&TYPE=PDF

Title 38, Section 4318, US Code

Says the following:

(B) Each period served by a person in the uniformed services shall, upon reemployment under this chapter, be deemed to constitute service with the employer or employers maintaining the plan for the purpose of determining the nonforfeitability of the person’s accrued benefits and for the purpose of determining the accrual of benefits under the plan.

To me, that seems to clearly support that you would impute their service in some reasonable way.