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Barred enrollment in 401(k) A little lengthy

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GregK

Junior Member
What is the name of your state? Wisconsin
Greetings and Happy Holidays all.
I'll apologize in advance for the length of this but please humor me

I could talk for hours about the things my former employer has done that range from bad taste to outright verbal assaults (any employee was fair game) but I won't because after 8 years of lies and deception I took my show on the road. I didn't want to as I now have to commute 40 miles each way but it was better than working there.

A short history and then a quick question;
I started with this "family" (Manson) business in 1999 having been hired to author and administer a Y2K Remediation program. The first week I was presented with the usual new hire package. I enrolled in 401(k) and chose the areas I wanted to invest in.
So Y2K comes and goes, I'm assigned to provide internal and external computer and network support. Things seem to be going great. The 15th of every month a company meeting was held in which envelopes were handed out to employees vested in 401(k). I was told I wouldn't get one until I hit the one year mark. I'm cool with that (I knew nothing about 401(k).

In the company meeting of my 1yr anniversary the envelopes are handed out but the prez walks right past me. I cleared my throat to get his attention, he turned to face me and I asked where my 401(k) "State of the Union" envelope was. He looked through the remaining ones and said there wasn't one there. He asked me if I enrolled. I answered in the affirmative. He looked to my manager (his brother in law) and asked him to look into it.
I talked with my manager after the meeting and he assured me he'd make the call that day. Well, 2 months of me asking at least once a week later, he informed me "They lost it" and I would have to complete another enrollment form. I asked if I would have to wait another year to be vested again and he said I would. I expressed to him, professionally, how much BS that was that I should be punished, in a manner of speaking, for somebody else's incompetence and if he wouldn't mind pushing the issue harder.

Sooo...I filled out another one. A year goes by. In the interim one of my children died so I wasn't really staying on top of things like that. I did remember (2 months after my anniversary) to ask both my manager and after getting the runaround from him the president. Both were absolutely indifferent. My manager, who fancies himself a funnyman (about as funny as a flood in an AlkaSeltzer factory) says, "Ahh don't worry about it. You're not going to live long enough to get it anyway." Yeah. Funny. I protested alot but who do you go to in a company that's all family and the president, who rules every facet with an iron fist, is the only one who can make things happen?

Within a week I was "loaned" to the copier side of the company (copiers are the company's core biz) and assigned to physically put together copy machines. That despite informing the company in writing (on Empl App) prior to a firm hire offer that I was looking for sedentary work due to 2 previous back injuries. I was told to "take my time". I tried to...but there were always 6 a day scheduled. These things are as heavy as VW's for Pete's sake. 2 months into doing this, I reached over for a screwdriver and blew out disc number 3. It took them 2 weeks to report the injury to the State of WI; the law is 7 days, and the prez literally made calls to every entity involved in the process, from the workers comp carrier (his golfing buddy), to the surgeon who was to perform the surgery.

Almost there. Sorry.
When I returned to work after surgery I was told by the administrative secretary that she was told by the Accts Payable person (the prez's wife) that I wouldn't ever be working on computers again. My punishment for being a good team player and having the audacity to blow out a disc I guess. So I was assigned to the companys Nextel Department as a technician where I languished and wasted away while dealing with the loss of a child.

Anyway, when I left the company this May 15th I requested copies of my records which the prez did electronically (he scanned and converted them to pdf) and received them in an email. The majority of what was in it was all negative. eg, mostly workers comp status reports from the comp carrier. Only 1 application for employment was included and was trimmed and censored. (I filled one app out for a different dept in 1998 and when they wanted me for Y2K work in the IT Dept they had me fill out another in which I stated my physical limitations). I got no copies of my 401(k) enrollment apps (although I saw BOTH in my folder the last day on site when I sat with the prez for my "exit interview". He wouldn't let me handle the folder or look through it...I asked.

So the question...how the hell can I prove they owe me an 8 year 401(k) distribution if they've shredded everything? (I don't know that's what happened of course but it wouldn't surprise me...they sell shredders too).

Like many people I could go on and on...for instance, after the loss of our child I was diagnosed with depression but forced to work alone in a department that Sprint Nextel contractually required to be staffed by 2 people, or that I was prevented from taking lunches and breaks until I ended up in the hospital with atrial fibrillation, or that I sent an email to the prez reminding him that I was now protected under the Americans With Disabilities Act and needed food and breaks, or**************..you get the picture.

Why did I stay is what your all asking. I stayed after the suicide death of our 15 year old daughter because I had a wife on heavy medication for years, and had 3 other children to take care of.

Thanks for listening to my ramblings. Hopefully there's something I can do to get the 401(k) money. I tried lawyers in my city...no good. My former employer provides copy machines to them all. Not one of them called back and I called no less than 20.

Thank you all and again, I wish you a safe and Happy Holiday season.

Greg
 
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ecmst12

Senior Member
Do you have copies of your check stubs showing the deductions of your 401k distributions? How about your W2's? Your entire year of contributions should be on there.
 

GregK

Junior Member
Yeah that's the killer right there. My pay stubs show deductions for "Other" but not specifically for 401(k). And as far as how much I put into it...I can't prove a dime. That's my whole point and where I'm sure I'll get roasted by the pro's here.

My point of contention is I DID in fact enroll twice and should be entitled to membership just as the other 50 employees but for whatever reason management chose not to. I'm not well versed on WI law in this area despite numerous Google searches but I've been told informally that I should have been presented with an Opt Out at the same time, if not on the same enrollment form.

I was reading another post here by a young lady who's PO'd because her employer signed her up for it automatically and attached her signature. I'm the flip side of that story.

I was a good employee and office friendly so I don't THINK that's the reason for the "special" treatment I received. All I can think of is that they hired me to administer the Y2K program (in which they made massive amounts of $$$) and didn't have any plans to keep me after...but I had shown expertise in IT areas they were lacking in so kept me. I don't know.

Basically I'm wondering if I have a legal leg to stand on if I pursue this. I don't have copies of the 2 401(k) apps...damnit. Wouldn't the investment company have copies of all that? (Assuming a signed Opt Out is required in Wisconsin that is). Without paper I have a feeling I'm screwed. How do I force/coerce them to give me a full copy of my employee records instead of the truncated censored version I got in the email?

I just hate getting got by them once again. It's a man thing I guess. :rolleyes:

Greg
 

ecmst12

Senior Member
You're gonna have to wait for pattytx (she's the payroll expert), but the fact that your deductions weren't labeled as 401k deductions sounds WRONG to me. There are special tax rules and other laws governing 401k contributions; if yours weren't being properly labeled, I don't see how they could have been being tracked properly.
 

cbg

I'm a Northern Girl
Just as an FYI, this doesn't fall under WI law; 401k's are regulated by Federal law.
 

pattytx

Senior Member
The amount must be in Box 12 on your W-2 with Code D. And the "Deferred Compensation" check box should have been marked. If not, you need to request a corrected W-2 from the employer. If you don't get it, contact the IRS after February 15, 2008.

What did you do about prior years? None of your W-2s show your contribution properly?
 

GregK

Junior Member
OK so 401(k) is Federal. That's what I thought. It isn't however how the owners of the company presented it. We (the employees) always came away from the company meetings feeling as if our enrollment in the program was a 'gift' from them.

I suppose I'm just wasting people's time here as I have nothing that refers to 401(k) with my name attached to it. I'm convinced I was just never enrolled in the first place....twice.

And yes. I realize it was my responsibility to stay on top of this but in my defense I refer to the family issues that at the time consumed so much of my life. I had nothing left for 401(k) or office politics, or anything other than the care and maintenance of my wife and kids. I ate a heaping pile of $hit sandwiches at that company to keep them going. It was a sacrifice I made willing and would do again. (I would have preferred to never have had to go through it but it is what it is).

The owners of the company in question loved to walk around spouting how Wisconsin is an "At Will" state whenever an employee attempted to represent themselves. When I pushed the 401(k) issue and the lunches and breaks, the prez said to me, and I quote, "Maybe you should think about what it is you're doing."
I researched the meaning of At Will. Loosely defined, it means 1) You aren't engaged in a private contract with the employer, and 2) You aren't represented by a negotiating body such as a union. Nowhere does it give permission to a bunch of abusive, arrogant, complacent, business owners to treat their employees as chattel.

With that anger laden rant out of the way, what advice would you legal eagles give/ Specifically, as my situation relates to the employer blatantly denying me access to a federally controlled (possibly wrong word) program? Even if this did go to negotiation with legal representation, how would a distribution number be arrived at? Or would it be a different type of suit all together? Punitive?

As much as I don't want to, I get the sense I may have to just suck it up and move on. At 49 years old, and currently working for a small startup company with no retirement offerings, my financial future isn't very rosey.

You guys are great for taking time out of your busy schedules to help the uninformed deal with the worms that have been let out of the can. God Bless You for that.

Greg
 

GregK

Junior Member
I wonder if what he talked about was more profit-sharing rather than a 401K. Any employee handbook?
Hello Ginny. Thank you for replying. I guess I need an X in a sig. ;) That's a whole nother story.
There was not and is not profit sharing in the company I worked for. Well, there is. But only for the owners and select managers and it's a secret. Only those who worked there long enough learn of it but it's not advertised.

I took a copy of the employee handbook when I parted ways. I don't have it with me at the moment. It reads more like a legal document. Alot of Shalls and Wills and such. It's definately punitively worded with very little talk of fringe benefits or things like education assistance. (Which is available but only for select employees determined by the president).

I'll look through the handbook when I get home tonight and see if I can find related info. We all had to sign the last page of it. I didn't agree with many things in it that were related to my personal life so signed it (under threat of termination) but with a caveat. I penned in "Signed under protest" after my signature. I didn't know what else to do and certainly wasn't trying to pi$$ anyone off when I did it. The majority of my coworkers did almost the same thing too.

Greg
 

ecmst12

Senior Member
I researched the meaning of At Will. Loosely defined, it means 1) You aren't engaged in a private contract with the employer, and 2) You aren't represented by a negotiating body such as a union. Nowhere does it give permission to a bunch of abusive, arrogant, complacent, business owners to treat their employees as chattel.
Nowhere does it PROHIBIT an employer from being a jerk, either. At Will means you can be fired for any reason not specifically prohibited by law.

You haven't noted what your W2s from prior years say about your contributions. This is very important. You had money taken out of your check - what are they saying they did with it? If it was NOT put into the 401k as you directed, then they owe it back to you!

You would need to find out the plan terms of the 401k to determine if it was illegal(per IRS guidelines) for your employer to deny you enrollment, IF in fact you were never enrolled. Do you know what company managed the 401k plan? They might be able to help you.
 

cbg

I'm a Northern Girl
Greg, I would suggest that you give the US DOL and/or the IRS a call. They are the regulatory agencies responsible for 401k's.

There are only limited reasons why an employee can be denied entrance to a 401k plan and I'm not seeing any of them mentioned in your post.
 

Zigner

Senior Member, Non-Attorney
I also want to point out that there is nothing in the law that requires an employer to even offer a 401k plan...
Sure, once it IS offered, there are laws governing it...
 

Andy0192

Member
Nowhere does it PROHIBIT an employer from being a jerk, either. At Will means you can be fired for any reason not specifically prohibited by law.

You haven't noted what your W2s from prior years say about your contributions. This is very important. You had money taken out of your check - what are they saying they did with it? If it was NOT put into the 401k as you directed, then they owe it back to you!

You would need to find out the plan terms of the 401k to determine if it was illegal(per IRS guidelines) for your employer to deny you enrollment, IF in fact you were never enrolled. Do you know what company managed the 401k plan? They might be able to help you.

Just from my simple reading of all this, it sounds as though the OP thinks the 401(k) was some kind of magic piggy bank.

To the OP - did you ever specify an AMOUNT or % of your pay to be contributed to your 401(k) fund? You vaguely mention some type of deduction for "other" on your paystubs. If I was getting thousands of dollars deducted from my paycheck each year, I'd sure as hell know EXACTLY where that money was going.

Did the employer specify any matching contribution to the 401(k), or any kind of year end profit sharing distribution that was made to all participants in the 401(k) program?

If other employees at the company were invested in the 401(k) have you talked with any of them ? Do they have similar stories or experiences?

-Andy
 

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