Employer

[Kitty]

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[Effen]

Does this relate to your post on the multiemployer board? If so, read my response.

Just because an employer contribution is based on a $/hour formula doesn't make them "employee contributions".

[ForksnKnives]

You are making a few misassumptions of law and fact. Your employer is not automatically a fiduciary because it receives compensation related to plan services or because it desires to receive compensation related to plan services. Nor is a fee paid for plan services impermissible. Nor is the fee automatically a plan asset merely because it is categorized on your pay stub with the pension contribution. You are glossing over the language of the MOA, which probably explains the basis for the fee, to reach the conclusion that the MOA is an invalid contract. The MOA language is probably necessary to determine whether the employer is performing fiduciary functions on behalf of the plan in exchange for those services or merely providing administrative services for a fee.

Not all fees paid back to the employer for plan services are impermissible under ERISA. If that was the case then the past ten years of 401k fee litigation would have been resolved a long, long time ago.

[ForksnKnives]

The information you are requesting is too specific and too extensive to be answered on a public forum. What you need is an advisory opinion from ERISA counsel. I am sure you can obtain that opinion from an ERISA attorney in your state.

[masteff]

Or you could 1) talk to your union and 2) contact the Wage and Hour Division, the NLRB and the EBSA of the DOL. These only cost you a phone call versus hiring an attorney.

You should be asking your main union office to explain how and why the local rep was able to enter into an MOA without ratification by the membership. Of course if it's been done that way for over 20 years then you likely don't have a valid grievance, but never hurts to try.

Also, you're talking about a union plan, possibly a Taft-Hartley plan, which means some rules are likely different. I'm not going into the deep end of that pool.