Sign an Adoption Agreement and do nothing?

[Guest Donathen]

A medium size employer decides to stop their union's DB plan and start at DC plan because of the costs. The union and employer agree on a 4% nonelective ER contribution (neither safe harbor nor discretionary) for the new DC plan. The adoption agreement states that this 4% nonelective employer contribution is effective 10/31/2009 and that salary deferrals are effective 1/1/2010.

The problem is, the Employer has been dragging their feet in actually starting the plan. Under increasing pressure from the Union to "get a move on" the employer signs the Adoption Agreement February 5, 2010, with the original effective dates above still on the form. It is now 2/16 and there has still been no communication to the employees regarding when they can start deferring. There have been no notices that there is even a plan, no salary deferral agreements, no nothing. The Employer may have even signed the adoption agreement simply because the union was threatening to file some sort of grievance.

Since no communication has taken place (save a few copies of the signed adoption agreement which were emailed to a few Union Employees who asked for it) what are the Employees' options? Do they have "missed deferrals?" Is the Employer not on the hook yet? What are the options for either side

[K2retire]

There was no right to defer under the plan until it was signed. The employer may have breached the terms of their contract with the union, but the plan cannot be retroactive to 2009 because it was not signed by the end of the year.