11/19/2010 5:30 PM ET|
Some employers steal from 401k's
In tough times, some business owners are facing a tough choice: Pay the bills or deposit their workers' money into the 401k plan. Here's how to protect yourself.
Most of the time, the money you contribute to your 401k ends up in your account. But there are times when it doesn't, according to the U.S. Labor Department's Employee Benefit Security Administration.
Roughly once a week in July alone, some of the 150 million Americans covered by the more than 700,000 employer-sponsored retirement plans received notice that their hard-earned money ended up in the wrong pocket.
The Labor Department last summer sued Savannah, Ga., attorney Benjamin Eichholz and the Eichholz Law Firm to recover assets belonging to the Eichholz & Associates P.C. Retirement Plan and the Eichholz & Associates P.C. Employees Pension Plan. In its lawsuit, the department alleged "the defendants violated the Employee Retirement Income Security Act by improperly transferring, lending or using plan assets. The defendants also imprudently lent plan assets, invested in high-risk stocks and failed to ensure the plans were covered by a fidelity bond."
The department earlier this year obtained a consent judgment ordering Eric C. Mitchell & Associates and Eric C. Mitchell to restore $20,723 in funds to the Bedford, N.H., company's 401k retirement plan. The defendants served, respectively, as the plan's sponsor and administrator, and as its trustee.
The judgment resolved a Labor Department lawsuit that alleged the defendants had violated the Employee Retirement Income Security Act, or ERISA, since June 2008 by failing to forward contributions withheld from employees' wages to the plan and using the funds for purposes other than plan benefits.
In another lawsuit, the department alleged that Explore General and its officers failed to forward more than $70,000 in employee contributions and to collect more than $100,000 in employer contributions owed to the company's 401k plan, in violation of ERISA.
The lawsuit alleged that the company, Jaime Gonzalez and Paul Gong failed to timely segregate and remit to the plan employee contributions for the period from January 2002 through about March 2005.
Gonzalez and the company -- Gonzalez was its owner and president at the time --allegedly co-mingled the employee contributions with the general assets of the company and used the money to pay general operating expenses of Explore General.
Between a rock and a hard place
To be sure, times are tough for small- and midsized business owners. And now more than ever, these owners, many of whom also serve as the company's retirement plan fiduciary, are caught between a rock and a hard place: Pay the bills or deposit their workers' money into the 401k plan. Sometimes, employers make the wrong choice.
But there are things you can do to protect your retirement savings long before your employers end up in a Labor Department press release for the wrong reason.
"Participants need to monitor their account statements to ensure that their contributions are being timely deposited and invested in the right funds," said David Wray, the president of the Profit Sharing/401k Council of America.
The experts recommend you monitor on a regular basis and leave no stone unturned. "Most firms provide account balance information via a variety of ways," said Tom Kmak, the chief executive officer of Fiduciary Benchmarks.
Usually, you can get your account balance on the Internet, via an 800 number and in hard copy once per quarter. "Check all three to make sure they are in sync," said Kmak, even if it means checking after every paycheck.
You should be even more "conscientious about those reviews if you have reason to believe that your employer has cash-flow or other financial problems," said Fred Reish, a pension attorney with Reish & Reicher.
Your employer is required to deposit your contribution into your account within seven days of the payroll date, according to Mike Alfred of BrightScope, a provider of 401k plan ratings. If your employer is taking longer than seven days to deposit your funds, and especially if they are taking more than 15 days, you should call the Labor Department immediately, Alfred said.
Assuming that your contribution is being made in a timely manner, check the total withheld from your paycheck for a quarter or year against the total of the corresponding statement, Kmak said.
If there's any sort of discrepancy or error, bring it to your employer's attention, Wray said. If the employer refuses to act, you should call the Labor Department helpline for assistance.
For his part, Reish said another warning sign is if you don't get a quarterly statement in a timely manner. The Labor Department has on its website other warning signs that your 401k contributions are being misused.
Ask for auditor's report
If you want to do additional due diligence before contacting your employer or the Labor Department, Kmak recommends that you ask your employer for the auditor's report from the Form 5500, which is only available if the plan has more than 100 participants. The 5500 is the official form that the retirement plan files with the Labor Department.
Experts say you should learn what your plan fiduciary's responsibilities are and what recourse you might have if they don't follow the required conduct standards. For instance, "if the plan lost money because of a breach of their duties, fiduciaries would have to restore those losses, or any profits received through their improper actions," the Labor Department said on its website.
And if an employer did not forward participants' 401k contributions to the plan, the company would have to pay back the contributions to the plan as well as any lost earnings, and return any profits improperly received.
After you call the Labor Department, it will conduct an investigation and, according to Wray, if regulators find that there has been an error or misappropriation it will intervene. In some cases, there could be a civil or a criminal action.
Another option if you suspect wrongdoing is to file a lawsuit against your employer. "Recently, the Supreme Court clarified that an individual 401k participant with a grievance can do so," said Wray.
What happens to your 401k money is up to you. You are the watchdog. You are your own advocate. Yes, the Labor Department will conduct an audit. But only after you contact them. They are relying on you to contact them. It's not the other way around.
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