AutoEnroll bringing 403(b) plans into ERISA?

[Guest ames]

Automatic enrollment feature is permissible in 403(b) plan

This was discussed briefly back when Rev. Ruling 2000-35 came out - does an automatic enrollment feature pull a 403(b) plan back under ERISA? Does it violate the "voluntary participation" requirement to keep out of Title I? I've been poking around wondering about this recently, and thought I'd toss it out here, see what you guys think.

My instinct is that this is a fine hair to split. It would depend on whether the IRS feels that having the opportunity to opt out is the same as having the voluntary decision to opt in; people who are slow to enroll would be slow to unenroll, but quere whether would that make their participation involuntary.

[Guest Sieve]

Based on EBSA's FAB 2007-02 ( http://www.dol.gov/ebsa/regs/fab2007-2.html ), I would think that permitting negative elections would not, alone, bring a non-ERISA 403(b) into ERISA coverage. After all, negative elections (auto enrollments) are required to be voluntary--i.e., there must be sufficient time and notice given to employees to permit an individual to make a decision as to whether or not to opt out. It's just voluntary in a slightly different way, but it's still voluntary.