Back-dated plan documents?

[MJ Hartman]

After several attempts I have just received a copy of the 401k & mpp plan doc. from my former employer. As I was a plan trustee and did the 1999 y.e. calculations for both plans I was familiar with the plan's provisions as they applied to computation of er contributions and forfeitures. The plans I just received have been amended effective June 1, 1999 and "signed" Dec. 22, 1999. The 401k plan was previously a std. plan, now suddenly non-std w/ last day rule language and no loan provisions, which were present in the previous docs. I guess my first question is: are these docs legit. since I know for a fact they were drafted within the last 30 days to keep me quiet and back dated to when I was still an employee and plan trustee, never formally removed from either plan. Do I have any reason to be concerned that my trustee status could be in a fiduciary breach? I only left in Oct. of 2000 and these changes were never provided in a smm or verbally discussed by the owner of the co. Its pretty obvious that these plans were deliberately altered to eliminate 2 employees from receiving any 2000 plan year $.

[Guest pineapple]

If the prior version of the plan was a standardized prototype, it probably only required 500 hours in order to receive an allocation of employer contributions. Once a participant met the 500 hour allocation requirement, the plan could not be amended for that plan year to change the allocation requirements. Check the allocation requirements in the prior docs.

As far as fiduciary liability, if you are the plan trustee and have never been formally removed, you are exposed.

[rcline46]

Since you are exposed as a trustee if never removed and you never resigned, the file with the DOL. You are required to file as a fiduciary if you believe another fiduciary has done something wrong.

Or, since SMM never distributed, the amendment is null and void, tell former employer that and demand contribution or you will report them to IRS and DOL. You might even collect a whistle blower reward!

[AndyH]

I think you should immediately hire an ERISA attorney to represent you in this matter and rely on his/her advice, not the advice presented here.

[Erik Read]

I would have to agree with AndyH. While our advice may be based on years of expericence with similar cases, whenever a very serious issue arises, I always refer to an ERISA attorney.

Please - for your safety, contact one, and discuss the issues presented here.

Good Luck.

[MJ Hartman]

thank you for all of your comments. I spoke with an ERISA attny in town and his first response was to get documentation from the employer showing me removed as a trustee from the plan. I have since done that and also provided in my letter to the other trustee inconsistencies with what I saw in the updated documents that did not comply with work done on the 401k plan for 1999 year end info; specifically the eligibility dates being changed from immediate to 1 year of service. My main concern is getting documentation that I am no longer a trustee or responsible for any of these egregious errors.