May non-union members in "right to work" states be tested

[Guest Jose Rosario]

I understand that certain states have "right to work" laws

under which employees who are not union members, nor pay union dues, may be covered nonetheless by collective bargaining agreements, and thus are entitled to the all the rights and benefits afforded the union membership notwithstanding their non-member status.

Assuming this is true, may such employees be disaggregated for purposes of nondiscrimination testing? If so, may the employer choose to test this group with the union membership, or by themselves?

[KIP KRAUS]

If these employees are eligible to participate in the union 401(k) plan then it would make sense to me that they would be excluded for testing purposes. If benefits are the subject of collective bargaining I don’t think they need to be included. This is strictly my interpretation. I don’t have any site for my opinion. Maybe some one out there does.

[KJohnson]

I don't believe that right to work laws have anything to do with it. I think that if you track through the regulations, you will end up at 1.410(B)-6(d)(2) which states that as long as the employee is in a unit of employees covered by a collective bargaining agreement, the employee is considered a collectively bargained employee. As you point out, you don't have to be a union member to be in the collective bargaining unit.

Therefore, I think that they must be considered with your other "union" employees and you are stuck with mandatory disaggregation for purposes of 410(B) as well as your ADP test. I don't believe you even have the option to aggregate.