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Who's the Employer?

Question 171: Does Rev. Proc. 2002-21 have any impact on a division of a company if the company has determined that the employees of the division are common law employees of the company and participate in the company's qualified plan, even though the employees are leased from a PEO? Answer: No. These folks are doing just what they should be doing and can go ahead without change. Rev. Proc. 2002-21 affects single employer plans adopted by PEOs. Accordingly, it has ramifications for a sponsoring PEO, for the participants in the PEO's plan, and for the COs for whom those participants perform services. It does not affect: Existing multiple employer plans cosponsored by a PEO and by all the COs whose workers participate; or A CO's plan which (almost undoubtledly correctly) treats the workers as the CO's common law employees and disregards any benefits provided under a PEO plan that the CO does not cosponsor. A PEO that has chosen not to sponsor a plan. For additional analysis of this Rev. Proc., see my redesigned site. For more on the status of leased employees, see Chapter 4 of my book, Who's the Employer.

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