DOL Rule Gives Small Plans 7-Day Safe Harbor to Deposit Employee Contributions

The U.S. Department of Labor (DOL) published a final rule to protect employee contributions deposited to retirement and health plans with fewer than 100 participants by providing a safe harbor period of seven business days following receipt or withholding by employers.

The final rule, "Definition of 'Plan Assets'—Participant Contributions," was published in the Jan. 14, 2010, edition of the Federal Register and is effective immediately.

Prior to the new rule, employers of all sizes were required to transmit employee contributions to retirement plans, such as 401(k)-style defined contribution plans, as soon as they could reasonably be segregated from the general assets of the employer, but no later than the 15th business day of the month following the month in which contributions were received or withheld by the employer. The latest date for forwarding participant contributions to health plans was 90 days from the date on which such amounts were received or withheld by the employer.

"This rule will give employers greater clarity in remitting participant contributions to small pension and welfare plans in a timely manner," said Phyllis C. Borzi, assistant secretary of labor for the department's Employee Benefits Security Administration, in a statement. "We estimate participant accounts could grow by $19 [million] to $44 million as a result of these rules."

The DOL did not expand the safe harbor to cover plans with 100 or more participants because of "a lack of information and data sufficient to evaluate current practices of such employers and assess the costs, benefits and risks to participants associated with extending the safe harbor to large plans," according to the DOL statement.

Steps to Take

According to Tom Voinaroski, retirement practice leader at benefits consultancy Kushner & Co., small employers should take steps to ensure they are in compliance. In a post on his firm's blog, Voinaroski recommends that:

• Employers whose plans have less than 100 participants ensure that their payroll vendor (if payroll is done externally) or their internal payroll department is aware of the new final rule, and that all employee contributions and plan loan repayments are made by no later than the seventh business day if they wish to use the safe harbor.

• Employers whose plans have 100 or more participants, or employers with small plans electing not to use the safe harbor, should ensure that all employee contributions and plan loan repayments are deposited by the earlier of the date those contributions and/or loan repayments can be segregated from employer assets or the 15th business day of the following month.

Stephen Miller is an online editor/manager for SHRM.

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