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Opted out of 401k - found out I was enrolled

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litsupport

Junior Member
What is the name of your state (only U.S. law)? AZ

About 6mo ago the company I was working for hired a new HR mgr.
When 401k enrollment time came around she came into the meeting I was attending and gave a short 'what it is, how it works' speech and provided an opt-out document. We had about a week to fill out this form and return or we would be automatically enrolled. I filled this paper out immedeately & when the meeting was over, took the form to her office and personally handed it to her.
Thursday I was fired (after 6 years with the company) for tardyness\attendance due to car issues. Saturday I received a letter in the mail giving me my 401k statement. The one I opted out of.
What recourse do I have?
 


tranquility

Senior Member
Recourse? For what? The only thing I see that could possibly be damaging is that some money was removed from some paychecks to go to your 401(k) account. Correct? While that is a theoretical "hurt" (aka damages) in some way, it would be hard to quantify it. (Well, not too hard. You can just withdraw it and your penalties might be considered damages.) If there were any matching funds at all, you should just move along. If there were not, are you really looking to make a big deal over 6 months of savings you knew about but didn't bring up? Really?

While you might have a winner if you can prove as you say, since you failed to mitigate your damages by bringing it up at the first paycheck funds were withheld, that's all I think you could get. (Again, if there were no matching funds.) The penalty for an early withdrawal from your 401(k) for the amount withheld in your first paycheck after you purportedly opted out.
 

litsupport

Junior Member
Recourse? For what? The only thing I see that could possibly be damaging is that some money was removed from some paychecks to go to your 401(k) account. Correct? While that is a theoretical "hurt" (aka damages) in some way, it would be hard to quantify it. (Well, not too hard. You can just withdraw it and your penalties might be considered damages.) If there were any matching funds at all, you should just move along. If there were not, are you really looking to make a big deal over 6 months of savings you knew about but didn't bring up? Really?

While you might have a winner if you can prove as you say, since you failed to mitigate your damages by bringing it up at the first paycheck funds were withheld, that's all I think you could get. (Again, if there were no matching funds.) The penalty for an early withdrawal from your 401(k) for the amount withheld in your first paycheck after you purportedly opted out.
I did not bring it up because I was unaware of it. Payment system is all online. We have to approve our times, which I did. If I wanted to view my pay stubs, I would have to login online to do so, I did not. I realize in hind site, was a mistake. I handed the opt-out form - signed - to her personally. I expected her to do her job correctly, which she did not do. I have witnesses who would verify that I opted out.
 

Zigner

Senior Member, Non-Attorney
Yet, you have 6 months worth of contributions.

And, I have to be honest, I've been doing payroll for quite a few years. The workers in the back know if their paycheck is a dollar different than it should be. Your claim of ignorance doesn't ring true.
 

CSO286

Senior Member
I did not bring it up because I was unaware of it. Payment system is all online. We have to approve our times, which I did. If I wanted to view my pay stubs, I would have to login online to do so, I did not. I realize in hind site, was a mistake. I handed the opt-out form - signed - to her personally. I expected her to do her job correctly, which she did not do. I have witnesses who would verify that I opted out.
And since it's your money, one would think you'd wonder at why there was more deducted from your pay than the standard deductions.

You have some responsibilty here as well.
 

tranquility

Senior Member
I did not bring it up because I was unaware of it. Payment system is all online. We have to approve our times, which I did. If I wanted to view my pay stubs, I would have to login online to do so, I did not. I realize in hind site, was a mistake. I handed the opt-out form - signed - to her personally. I expected her to do her job correctly, which she did not do. I have witnesses who would verify that I opted out.
You have a duty to make sure your check is correct. Were there any matching funds? How much? How much did you have removed from your pay?

Arguendo, you had no duty to check (I think you did, but just for the sake of discussion.). What are you damages?

A. Total amount of money removed from pay.
B. Matching funds by employer.
C. Penalties on early withdrawal. (10% Federally, 0% AZ)
D. Interest on tax savings

I'd figure, if you really wanted to push this is you would have to pay the taxes on your income removed from the 401(K) and a 10% penalty on the amount. Since you always have to pay taxes on the money anyway (and you might be getting an advantage from a lower tax bracket this year) you only get to claim 10% as damages. So, you figure A/10 as the amount of penalty. Then, you have to repay any matching amounts you received in error. So, A/10 - (B + C) = your damages.

And, that's at best. Put out the numbers and we'll see if it is worth it to you to hire an attorney.
 

litsupport

Junior Member
Yet, you have 6 months worth of contributions.

And, I have to be honest, I've been doing payroll for quite a few years. The workers in the back know if their paycheck is a dollar different than it should be. Your claim of ignorance doesn't ring true.
I am not a liar. Contribution was for 4 months & I earned 4.77% return on what I paid in. It's not monetary compensation I'm looking for. She did not - on purpose, because she does not like me - submit my opt out form. I want this to go on her permanent employment record. As it should.
 

swalsh411

Senior Member
Neither you nor any court has any control of if / how the company chooses to write up or otherwise discipline the employee in question for this error. Zero. So get this idea out of your head because it's not happening.

Why didn't you review your pay stubs? Laziness? It's YOUR money but apparently you couldn't be bothered to check for errors.
 

commentator

Senior Member
I love that idea that there's a universal "work record" somewhere that this person could be written up on. It's maybe a nice revenge fantasy, against Catbert the evil HR director, but as someone said, you have zero control over what the company does about this, and really, they're probably not going to be too terribly upset about it. You've already lived without this money, didn't miss it, and now it's there for you. Take the unexpected money out and use it to supplement your income while looking for another job. If you were fired for attendance issues, you probably didn't qualify for unemployment benefits either.
 

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