My former employer has/had a safe harbor 401k that provided for a 100% vested matching contribution up to a certain amount contributed by each employee. The SPD does not provide a specific time for when these matching contributions are supposed to be made. It is now 2013 and I haven't received my match for my 2011 plan year contributions. I've sent emails to the plan fiduciary asking for an explanation, but I'm not really getting anywhere with her. The amount they owe me isn't that much, so it's probably not worth a lawyer's time. Any suggestions?
The time by which an employer is required to make a 401(k) safe harbor matching contribution depends on the plan's plan year. The deadline is generally the last day of the plan year following the plan year in which the employee contribution that is being matched was made. There therefors is a slight possibility (although not likely) that the employer's contribution is not yet due. For example, take a the plan that has a plan year beginning Dec. 1 and ending Nov. 30, 2011. The next plan year would start on Dec. 1, 2012 and end on Nov. 30, 2013, so Nov. 13, 2013 would be the last day of the plan year after the plan year in which the employee contribution was made and therefore the last day on which the employer match would be due would be Nov. 13, 2013. Of course, this is unlikely. Most plans use the calendar year as the plan year (although some use the employer's fiscal year). In the case of a calendar year plan, if a contribution was made in 2011, the last day for the employer matching contribution to be made would be Dec. 31, 2012, so the contribution would have to have been made by now. If this is the case, however, it is possible that the first time it would be shown on your benefit statement would be the statement for the first quarter of 2013, which would be sent out around March 31, 2013. You should ask your employer about the plan's plan year and when the employer safe harbor matching contribution is going to be contributed. If the mnatch is not contributed in a timely manner, the employer would have to perform nondiscrimination testing on its plan, but the plan could still pass nondiscrimination testing. If the matching contribution truly is past due, then the plan's claims procedure under ERISA should be avaiable to you as a means to claim the unclaimed amounts. You would not be able to go to court unless you have exhausted the plan's internal claims and appeals procedures. I'd suggest asing the plan administrator for a copy of the plan's summary plan description, which should state the plan year. If it turns out that the employer's contribution is past due, I would then ask when the employer is expected to make the contribution. If there was no satisfactory answer to this, then you may want to consult a qualified ERISA attorney about your rights under the plan's claims and ppeals procedures. The plan administrator also should be able to supply you with a copy of the plan's claims and appeals procedures upon request. Hope this helps.
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http://www.dol.gov/ebsa/publications/wyskapr.html#chapter10. If it's an ERISA plan, then you might want to call a Benefits Adviser; but the first thing I expect them to tell you to do is to call your plan administrator and request a copy of the SPD. Of course, it might help to have a lawyer contact that administrator...
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Dennis Phillips is an attorney and financial planner based in South Florida. He is a member of the Florida bar, he holds the nation-wide Series 65 Investment Advisor license, and holds an insurance license in Florida and Virginia. Disclaimer: The response above is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, would significantly alter the above response.
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Mr. Kushner has provided a superb, scholarly response. The short answer is that it is probably too late to receive the match for 2011. Talk to the employer. Try to work out something in a calm fashion. You do not wish to ruin your job over this. If you do, then contact the Florida Agency for Workforce Innovation: 850-245-7105.
Be tenacious. Keep sending emails and calling. A certified letter may also help. Basically, if your plan uses the calendar year (most plans do). Then, the last day for the employer matching contribution would be Dec. 31, 2012. So it probably is a too late. You never mentioned the amount at stake. It is possible to have an attorney write the letter to the plan administrator. For a simple letter it may not cost that much.