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March 21, 2019

Here are the most recently added topics on the BenefitsLink Message Boards:

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mjf06241972 created a topic in Retirement Plans in General

In-Service Distribution on Prevailing Wage

Can someone take a distribution on Prevailing Wage when they are under age 59-1/2 as an in-service withdrawal (i.e., while still working at the company)? I have seen other plans that allow it but those plan documents only allow in-service withdrawals if over age 59-1/2.
Number of replies posted  1 reply      Number of times viewed  23 views      Add Reply
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BTG created a topic in 401(k) Plans

Exclusion of 'Fringe Benefits' from W-2 Compensation Definition

I'm working with a plan that uses W-2 Comp, but excludes (among other things) "fringe benefits (cash and noncash)." Obviously, one of the big differences between using "3401(a) wages" and "W-2 Compensation" is the value of taxable group term life. However, since GTL is a fringe benefit, would this amount be excluded under the above definition? Or is it only the tax-free portion of GTL that is treated as a "fringe benefit"? On a related note, would anyone take the position that cash in lieu of health coverage (i.e., an opt-out payment) is a fringe benefit? (It seems to me that these payments are pretty clearly W-2 comp.)
Number of replies posted  3 replies      Number of times viewed  45 views      Add Reply
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KimS created a topic in Correction of Plan Defects

Attorney Pushing Back on QNECs Correction Method for Missed Deferrals

We're a small TPA firm. I've run into multiple ERISA attorneys advising our mutual clients lately that they must do a 50% QNEC for missed deferrals in situations that seem to me to clearly fall under Rev. Proc. 2015-28 for a reduced QNEC. The first one said that the lower QNEC can only be used if it is a failure to enroll -- not a failure to follow an election for an existing participant. In this case it was a failure to withhold from bonuses. It was caught and corrected almost immediately. Anotheris a new plan that failed to implement auto enrollment for anyone for several months after the plan began. This is clearly the exact scenario described in the Revenue Procedure. I won't know until a call tomorrow why the attorney believes it doesn't apply. Are others finding similar resistance to proposed correction methods?
Number of replies posted  2 replies      Number of times viewed  33 views      Add Reply
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erisa_novice created a topic in 401(k) Plans

Excluding Union Members from 401(k) Plan

We are currently bargaining for a first contract with an employer. The Employer currently has a 401k plan in place and has stated that union members cannot participate in the plan and have pointed to language in their SPD which states that union employees whose employment is governed by a collective bargaining agreement under which retirement benefits were the subject of good faith bargaining are excluded from the plan. (The Employer is offering a separate 401k plan for union members with lower contributions). The exclusion of union members seems permissible to me. Am I missing something? Any feedback would be appreciated.
Number of replies posted  1 reply      Number of times viewed  52 views      Add Reply
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RestAssured created a topic in Distributions and Loans, Other than QDROs

Partial Plan Termination; Can Participant Leave Account in Plan?

A plan with two sponsors (husband and wife-owned related companies; they adopted a single plan for all employees). Wife sold her company, so I removed her company as one of the sponsors, and all of her employees rolled or cashed out -- except one. (There's ALWAYS that one!) All of husband's company's employees/participants were unaffected. This participant (the employee of the wife's now-sold company) has over $1,000 in her account so we can't force a distribution. The plan is still technically active but the husband's company is now the only sponsor. Is this participant required to take out her money? Her employer is no longer a sponsor, BUT the account still exists.
Number of replies posted  2 replies      Number of times viewed  38 views      Add Reply
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JoshuaP123 created a topic in Form 5500

Form 5500 or 5500-SF

Father (88%) owner and adult son (12%) owner are the only employees of company X. The two make their contribution as a real estate investment with no eligible plan assets. Does this need to be filed with a full Form 5500 or can it qualify for a Title I waiver?
Number of replies posted  1 reply      Number of times viewed  26 views      Add Reply
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Chippy created a topic in Plan Terminations

Full Vesting Required for Paid-Out Partially Vested Ex-Employee, Due to Subsequent Plan Termination?

Working on the 2018 valuation for a balance forward profit sharing plan, I found out the company was sold in 5/2018 and technically the plan should have been terminated as of that date. No one notified us of the sale of the company, A terminated participant was paid out in 3/2018 at 40% vested. He terminated in 2017. Since he was paid out prior to 5/2018, should he forfeit his non-vested balance at 12/31/2018 or be made 100% vested and paid out the remainder?
Number of replies posted  4 replies      Number of times viewed  32 views      Add Reply
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ERISAgeek111 created a topic in Nonqualified Deferred Compensation

Employer Extends Severance -- 409A Issue?

Executive has a $600k base salary under a written employment agreement. If he is terminated without Cause or he terminates for Good Reason, he gets base salary continued for 1 year plus pro-rata annual performance-based bonus. Employer can extend the severance for up to another year and continue to pay him the base salary for up to 1 more year -- meaning the executive would get another $600k of salary (for another year) if the employer extended the noncompete by another year by giving executive notice within 45 days after termination date. Any 409A issues?
Number of replies posted  2 replies      Number of times viewed  15 views      Add Reply
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erisa_novice created a topic in 401(k) Plans

Ineligible to Participate in 401(k) Because of Unionization

A group of employees recently voted to unionize and negotiations for a collective bargaining agreement has commenced. The current 401k plan offered by the company prospectively excludes union members. Accordingly, the company now wants to establish a separate 401k plan for union employees. A number of employees who participate in the current plan will now be ineligible for the current plan and have to switch to the plan which will be established for union members. What are the legal considerations in having employees have to switch plans? What types of things should we (union employees) be paying particular attention to? We want to make sure people who have to switch plans aren't harmed in the process.
Number of replies posted  7 replies      Number of times viewed  52 views      Add Reply
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