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Half my office qualifies for 401K and the rest of us don't - is this legal?
My firm was acquired by another firm a year ago. The merger process was suppose to be finalized this summer and all my coworkers and I have been moved onto the new firm's healthcare. We are also expected to conform to the new firms policies, etc. etc. HOWEVER, none of us have been given the opportunity to join the 401K plan that includes a 10% match, which is driving me nuts and costing me not insignificant $$ I could be investing. Is this legal?
22 Comments
Kerry Roper
53
11/02/20 at 6:02PM UTC
Legal? There are no laws forcing employers to offer benefits, especially one like matching a 401k investment. It might not be that the business(es) wants everyone knowing about their differing HR policies for different employees, though, it wouldnt attract new employees. When two businesses merge, there are always going to be differences. As for finalizing the merger, it may be that every aspect of employee benefits hasn't been ironed out yet. They probably still need to work out the differences or risk losing staff. But as for legal, it has nothing to do with any law. Most employers are employment at will. Don't like it? Then you should look elsewhere.
1 Reply
Anonymous
11/02/20 at 6:15PM UTC
I think you missed the heart of my question: the legality of treating two employees who are held to the same quotas/goals, who have to go through the same performance reviews, etc. etc. differently when it comes to their benefits.
1
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Elina Sukharenko
12
11/02/20 at 6:05PM UTC
It could be a timing issue(working for company x months or x hours). I would ask what makes someone eligible for the plan.
1
1 Reply
Anonymous
11/02/20 at 6:06PM UTC
All new employees are eligible after 90 days.
1 Reply
Nora KasedManufacturer in San Diego
146
11/04/20 at 11:15PM UTC
Are you considered a “new” employee post-acquisition?
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Anonymous
11/02/20 at 6:15PM UTC
Is there a time frame for when you can join the 401K? At my current company and other companies I've had to wait a year after employment before becoming eligible to contribute and get a matching fund.
If they aren't going to offer a 401K match (which some companies just don't) and you still want to be able to save some money from your paycheck you can set up your own 401K. CharlesSchwab, Merrill and others investment firms offer this service. Depending on how your paycheck is set up (paychex flex or something similar) you can actually go in and request a specific deduction. It is a lot of work though and time consuming so I would first find out if your company is just not going to offer a matching 401K at all and then I would get on the phone with an investment banker who can help you set up your own if you plan on staying at this company long term. If this is really a deal breaker for you I would start looking for a company that offers this benefit from the get go.
https://www.investopedia.com/articles/personal-finance/091114/build-your-own-retirement-plan.asp
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Peg Glover
623
11/02/20 at 6:30PM UTC
I would suggest that you check with the holder of the 401K. Make sure there is not a time frame you can join. It can depend on a lot of factors - if you have not spoken to HR Benefits they may have the answer to this. Make sure they are the benefits section not general HR.....If all that doesn't work - talk with a HR atty and get there through - most do consults for free.....
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Liz O.
16
11/02/20 at 6:39PM UTC
I would check the policies for 401(k) with the company that you've moved to. They may have stipulations around eligibility for participation in the 401(k) plan. Who administers your company's 401(k)? In prior companies I've been, they've been administed by a company like Merill Lynch or ING. I know companies that do offer a 401(k) must adhere to IRS laws and conduct non-discrimination testing, but I have not heard about those laws applying to an employee match if the companies chooses to offer one. If you're really concerned around this, a lawyer specializing in benefits may be helpful here.
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Nora KasedManufacturer in San Diego
146
11/03/20 at 3:03AM UTC
Two questions first: 1) Did the firms merge or is your firm a wholly owned subsidiary of the firm that acquired you? 2) Where are you located? 401k matching and other benefits qualify as forms of compensation just like your salary. I’m not sure about federal law, but many states have employment laws that prohibit disparities in pay between employees that perform the same function and have the same responsibilities. A 10% Employer match is equivalent to a 10% pretax increase in pay, so this is definitely something to bring to your HR or benefits coordinator if the firms merged into one entity. Hope that helps.
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Anonymous
11/03/20 at 2:52PM UTC
There are laws against disparity in pay but not in benefits. Its within legal rights to offer an array of benefits to potentials and new hires. Within the construct of a merger, previous "rights" a company has provided you with, may no longer be valid and due diligence must be applied to figure our your new package. This is not illegal
1 Reply
Nora KasedManufacturer in San Diego
146
11/04/20 at 11:13PM UTC
I’m sorry but this is not correct.
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1 Reply
Anonymous
11/06/20 at 5:20PM UTC
I'm sorry but it is. It is perfectly legal to offer different levels of PTO time, based upon an individuals contract or agreement when hiring. Also within the construct of a merger, various forms of benefit arrangements can be granted. I am an attorney.
1 Reply
Nora KasedManufacturer in San Diego
146
11/06/20 at 5:29PM UTC
It’s not explicitly illegal, but that doesn’t mean it’s legal. There is just no existing legal precedent or case law that says certain benefits are considered forms compensation. In other words, this hasn’t been brought to the courts. I am also an attorney.
It is my legal opinion that if this issue were brought to the courts, the rule would be that benefits = compensation. This is also consistent with the principles of income tax laws.
I’m just approaching this as if I were in house counsel advising on compliance matters since I have a bit of experience with this.
1 Reply
Anonymous
11/03/20 at 11:26PM UTC
If your company was merged into the acquiring entity, you want to get a hold of the 401(k) Plan document or the Summary Plan Description. The plan documents should detail who is eligible and specifically call out who is not eligible, often by position title or groupings of like positions. If you are friendly with another employee who is in the plan, they can likely pull it from the plan's TPA site (e.g. Fidelity, Merrill Lynch, etc.) under the plan documents section. If not, you can call the Benefits department and ask for it.
If you were acquired but remain a separate entity, then your entity may not be included in the parent company's 401(k) and that is a leadership decision, not a legal one. Not much recourse there.
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Heather ScofieldGets things DONE.
159
11/04/20 at 1:20PM UTC
When a company is acquired, often the acquired employees are considered "new" employees and must therefore go through any waiting periods that a new employee would... like a 90 day waiting period to access certain benefits. I worked one place that was acquired, and not only did we have to wait for some benefits, but some other benefits RESET. Vacation time was one thing that re-set. Even employees with the company for decades who had earned multiple weeks of vacay per year were dropped back to one week of vacation.
1
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Kerry Roper
53
11/04/20 at 1:58PM UTC
No one responded when the OP actually said "all new employees are eligible after 90 days".
So does that mean they ALL are offered the match after 90? It sounds like it.
I also want to add that good advice shouldn't include telling someone to call an HR atty for something like this. There are unfair practices in business, and most of them are totally legal. Try google when you want to know if an HR practice or policy is illegal in your state.
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T. HumphreyVERSATILE BUSINESS ANALYST/PROJECT MANAGER
75
11/04/20 at 9:53PM UTC
Hi,
Here are some sources regarding 401K:
https://www.dol.gov/general/topic/retirement/participantrights
https://www.irs.gov/retirement-plans/plan-sponsor/401k-plan-qualification-requirements
To qualify for a 401K you must be
Employee participation standards must be met.
In general, an employee must be allowed to participate in a qualified retirement plan if he or she meets both of the following requirements:
Has reached age 21
Has at least 1 year of service
(A traditional 401(k) plan may require 2 years of service for eligibility to receive an employer contribution if the plan provides that after not more than 2 years of service the participant is 100% vested in all plan account balances. However, the plan must allow the employee to participate by making elective deferral contributions after no more than 1 year of service.)
A plan cannot exclude an employee because he or she has reached a specified age.
I hope this helps.
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Maree FrakesProgram Management Professional in NYC
48
11/04/20 at 10:35PM UTC
I've recently been through an acquisition, and from your original post my guess would be that it has more to do with the deal details of the merger than the 401k policy. Were you all given new contracts when the merger was completed? If so, this should outline what benefits you are eligible for under the new company. And if not, does the new firm have someone you can call to learn more about how your employment benefits have changed as a result of the merger and understand the policies for the benefits? That would be my first step in understanding what's going on.
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