H2B workers

[R. Butler]

If plan sponsor excludes employees H-2B workers is that exclusion going to be considered to be based on length of service? We wnat them to be permanently exlcuded. Although such workers are temporary deifinition thye aren't being exlcuded because of that.

Thanks in advance for any guidance.

[Lou S.]

Assuming your document allows for it and most do, I don't see why you can't have an excluded class of employees equal to H-2B workers. It is definitely determinable and would appear to be for a valid business reason. As long as you pass 410(b) and 401(a)(4) testing you shouldn't have a problem.

[jpod]

Unless there is an IRS statement to the contrary which i haven't seen, I am not so sure that the IRS would say this is ok under Section 410(a), because the status is by definition based on service time to a certain extent. R. Butler, can you play it safe and accomplish the same goal by having a one-year of service requirement with semi-annual entry dates for H-2B workers?

[Belgarath]

I tend to agree with jpod. I think you may have a problem unless, under your exclusion, you have "fail-safe" override language that moves them out of the excluded category if they ever work 1,000 hours.

[R. Butler]

Thanks for the responses.

Not sure that the same goal can be accomplished with a one year service requirement because if I read the H-2B rules correctly, hypothetically they could work for up to 3 years.

The plan already exlcudes seasonal employees, but does apply fail safe language if any such employees works over 1000 hours.

The plan sponsor would like to exlcude the H-2B employees permanently.

It is a tough issue because there is a valid business reason. It just so happens that the the government defined these workers as temporary, not the plan sponsor.

[Kevin C]

I've never had to deal with H-2B workers, so forgive me if this is a silly question. Would excluding the H-2B workers run afoul of any of the variety of other laws prohibiting discrimination based on national origin or immigration status?

http://www.dol.gov/dol/topic/discrimination/immdisc.htm