Compass Retirement Consulting Group, Inc.
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Nova 401(k) Associates
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Retirement Plan Legal Specialist Pentegra
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Central Pension Fund of the IUOE
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Retirement, LLC
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Nicholas Pension Consultants
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Central Pension Fund of the IUOE
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Retirement Plan Relationship Manager ERISA Services, Inc.
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Prime Pensions, Inc.
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Defined Benefit Calculation Specialist/Actuary The Angell Pension Group, Inc.
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Jr Retirement Plan Administrator/ Administrative Assistant Hochheiser Deutsch & Co, Inc.
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Bates & Company
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Carpenter Morse Group
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Trucker Huss, A Professional Corporation
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United 401(k) Plans, Inc.
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Question 100: What action should be taken when it is discovered that participants are in a plan due to supplying false information supplied by illegal aliens to the employer (fake social security numbers)? These individuals participated in the plan and received contributions. What should be done with the money contributed for these "participants?" For plan purposes, should the illegal aliens who worked be considered employees and participants, even though they were not legally employed? Should this be treated as an operational error and corrected under SCP? |
Answer: We start with the notion that the common law definition of employee is the basis for determining if someone is an employee for plan purposes. That common law definition, with all its various factors, does not consider whether someone is in America legally or not. In other words, if someone born and raised in this country would be considered an employee, then an illegal alien performing the same duties under the same conditions will also be considered an employee. |
Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner or to readers. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of this and similar situations.
The law in this area changes frequently. Answers are believed to be correct as of the posting dates shown. The completeness or accuracy of a particular answer may be affected by changes in the law (statutes, regulations, rulings, court decisions, etc.) that occur after the date on which a particular Q&A is posted.
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