Employer neglects to deduct 401(k)

[Brenda Wren]

Employee is complaining to employer on 3/15/01 that there were no 401(k) deductions from his paychecks during 2000. Employer is unable to find written modification of his deferral election. But employee isn't concerned until tax time. Employer argues that because (1) employee didn't "notice" this for 24 pay periods and (2) he was invested aggressively and would have suffered market losses anyway and (3)there was no match applied to the deferral that the employee has not suffered. What, if anything, to do?

[QDROphile]

Get competent help. Although people say incredible things when challenged, the nature of the comments you relate displays consderable ignorance about the very real dilemma that must be resolved.

[M R Bernardin]

I don't think this is a slam dunk. This doesn't necessarily appear to be a question of not implementing a salary deferral change request form; there seems to be a dispute as to whether one was ever submitted. Naturally if an employer fails to implement a salary deferral change request form, one could argue that the terms of the plan have been violated and that appropriate corrections and restorations are required. But when an employee fails to raise this with the employer for more than an entire year, one could also argue that the employee acquiesced in the employer's "mistake" (if in fact it was a mistake).

Psst to Qdrophile: tried to email you but wasn't allowed. How's it going?

[QDROphile]

Still keeping those QDRO files. I regret that I am not directly accessible, but I have to maintain deniability for the incorrect and intemperate statements that I post.