My employer is violating ERISA

[Guest emilybronte]

My employer is two months late in transmitting my voluntary pre-tax deductions to my 403(b). It is October 15th and the last contribution to my account was made in Sept. for July's withholding. There was no match for July. My August and September monies are in limbo. I called HR and they said they'd look into it--it is "finance" that sends the money. I hate to miss out on the tax-deferred benefit and the match, but this situtaion is too stressful. How should I address it. Do I need a lawyer?

[Guest b2kates]

Contact your local department of labor office.

[Locust]

I'd send the HR rep an e-mail stating the facts in a nonaccusatory way. It may be a miscommunication or a temporary thing. What I would be most interested in is how they respond. Do they respond quickly and give a good and thorough explanation, or do they procrastinate (or not respond) or give a lousy answer or one that shows annoyance? If the latter, you might want to consider another job - I would think that the type of employer you have is a more significant issue than a few months contributions. If you really think you're getting the shaft on the contributions, contact the EBSA of the DOL.

[saabraa]

Don't forget that Dept. of Labor has no jurisdiction/ERISA doesn't apply, if the employer happens to be a church or a government. Turning to the IRS rules regarding timeliness of deposit of 403b employee contributions, historically there was nothing more than some old revenue ruling; it was interpreted to require nothing faster than a once a year deposit. The proposed regs, as I recall, have now tightened up the rules to resemble the DOL time frames. But being proposed regulations, my understanding is that employers don't need to worry as much, if at all, about being bound by these particular regulations.

As for the employer match, if it's not been promised in writing, it doesn't have to happen. If it is in writing, employers generally have until the due date of the Form 990 (deemed or actual) to deposit the match.

[Guest emilybronte]

Thank you all for the replies.

FYI: My employer is a hospital, and has a poor financial history and a history of mishandling pension contributions. I love my job, but not the administration.

I will email the HR rep. and simultaneously contact the DOL.

Thanks again.

[AndyH]

saabraa, I find your comments to be very interesting and potentially useful. Could you elaborate on the source for your last sentence, both the timing and the "deemed or actual" rules that you describe? Thank you.

[saabraa]

saabraa, I find your comments to be very interesting and potentially useful. Could you elaborate on the source for your last sentence, both the timing and the "deemed or actual" rules that you describe? Thank you.

And then again, maybe not so useful. I must admit, that was a whole lot more shooting from the hip than my usual. I was transposing qualified plan concepts. I recall the proposed 403(b) regs require a written plan---but they're not final regs yet. I would expect a written promise to be subject to contract law, a subject I know nothing about beyond what coall stands for. If the new regs don't address timing of the employer contribution, then I'm unaware of anything that does.