Plan forfeitures must match plan document

It’s a routine matter for employees to forfeit retirement plan benefits. Even so, plan sponsors can’t afford to become blasé about it; ERISA demands more than an “easy come, easy go” attitude about the matter.

Forfeiting Benefits

Generally, defined contribution plan participants can forfeit benefits when they leave their companies with unvested dollars still sitting in their accounts (except under circumstances described below). Those forfeited dollars can come from two sources: matching contributions you’ve made to their deferrals, and/or qualified nonelective contributions you’ve made on their behalf.

The amount of the unvested dollars typically classified as forfeited depends on the vesting schedule you’ve adopted in your plan document, and the timing of an employee’s departure. For example, if you use a three-year cliff vesting schedule, all employer funds set aside for participants who leave before three years are (normally) forfeited, and after three years, participants are 100% vested.

With a graded vesting schedule, if your plan requires the maximum six-years of service before full vesting, participants would only be entitled to keep 20% of matching or other employer contributions after two years of service, 40% after three, and so on until reaching 100% after six years of service. (You can opt instead for faster graded vesting schedules if you want to be more generous; ERISA only sets outer limits.) Of course, participants’ own contributions to the plan are immediately vested.

Defining Forfeiture

All of this assumes, however, that your plan document defines forfeiture as what happens to nonvested benefits when an employee leaves. That’s known as immediate forfeiture. But, you can define forfeiture differently. Specifically, you can have those unvested dollars live in a kind of retirement plan suspended animation for five years, before they’re forfeited for good.

Why might you do that? Under ERISA, a former plan participant who returns to the company and rejoins the plan within five years, has another crack at claiming those unvested assets. Still, the suspended animation approach is generally more administratively cumbersome, and the five-year restoration requirement remains whichever way you define forfeiture.

In either case, however, ERISA sets a high bar for returning employees to regain title to those assets. Specifically, if the former employee had received a distribution of any vested funds when leaving the company, that employee would have to return all of those dollars back to the plan before having the opportunity to get those unvested dollars back. And if the returning employee cleared that first hurdle, the unvested funds to be restored would still be unvested.

The plan sponsor has two choices in this regard: Establish a “bridge of service” policy. That means the clock on the returning employee’s years of service would resume where it left off. Or move the returning employee back to square one, and treat him or her as a new employee for vesting purposes.

Be Consistent

Plan recordkeepers must keep scrupulous records of every penny in your plan and which of the many buckets they belong in. Review how your recordkeeper is tracking forfeitures.  Finally, be sure that the way you’re handling forfeitures is consistent with the fine print in your plan document that prescribes these procedures.

How to Handle Forfeited Funds

However you define forfeiture, you have to do something with the unvested dollars left in the plan when a participant leaves the company. So, what are your options?

You can redeploy those dollars towards your commitments to matching or nonelective qualified contributions to plan participants. Or if you’re feeling generous, allocate them to participant accounts. To do so, however, you’ll need to have language in your plan document that describes how those funds would be allocated among participants and eligibility requirements. Also, these allocations would count towards the participant’s limit on total annual additions, so you might not be able to allocate all forfeitures that way.

You can also use forfeited dollars to pay reasonable plan expenses. Finally, you can use them to restore previously forfeited amounts to participant accounts. That is, if a former employee returns within the five-year window and returns previously distributed funds, as required, the dollars forfeited by other employees get recycled into the nonvested accounts of those returning employees.

Chances are, you won’t need to exercise this last option because it’s not a common occurrence for former participants to return within five years and restore distributions they took when they left. Still, it’s a good tactic to be aware of should the need arise.

Whichever path you choose, you have a deadline to get it done: The end of the plan year following the plan year in which the forfeiture occurred.

For a no-obligation discussion on the possible impact and steps you should take now, contact Meresa Morgan, our Audit Shareholder with significant experience in this area.

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