USERRA and 401k make up

No matter what you do (rely on union, your own attorney, etc), do your own research on DEADLINES. Lawyers miss them frequently. Make sure they don’t blow the deadlines or you can risk a lot. I’m speaking from experience.


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This is My Screen Name said:
I'm fixing to return to my airline job after a lengthy MIL leave. While reading Union emails recently I was quite disturbed to read that the company hasn't been participating in 401k makeups.
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When you say they haven't been participating in 401k makeups, what do you mean? Did they not contribute while you were on military? Or you're back and trying to contribute make-up payments, and they won't let you?
 
The Department of Labor administers ERISA. If you don’t get a quick response, you will once you file a claim (there’s an app for that!) with them.

When I took on my husband’s company for violating ACA, we went through the union first and they got it done because I spoon fed them everything (charts, calculations, historical premiums and contribution rates, percentage increases and citations of the specific parts of the law to support the claim). So there was no need to take it further.

It could take a while but, unlike my situation with the health insurance, with a retirement plan they have to correct the error and make you whole on lost earnings and interest.

Good luck!
 
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This is My Screen Name said:
I'm fixing to return to my airline job after a lengthy MIL leave. While reading Union emails recently I was quite disturbed to read that the company hasn't been participating in 401k makeups. Obviously this is in direct violation of USERRA laws. This is what brings me to this posting - this is my first Union job. The Union is currently working with ESGR to fix the problem. To what extent do I have to rely on the Union to solve this and what point could I hire my own lawyer if need be ?
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I just happen to be a union rep for this very thing and I recently attended an ALPA meeting where this very thing was discussed. What ALPA and the ESGR are currently working on is a solution that works for everybody. What that means is that the companies want it correct, the ESGR wants it correct, ALPA wants it correct, and so do you. There’s one problem: the solution has different math for each individual and the individual needs to communicate their desires to the employer. Let’s start with some facts...

1. 401k regs allow members to “catch up.”
2. Retirement benefits are negotiated.
3. USERRA requires that the company treat members on MIL Leave the same as any other employee in the same status, with a few exceptions.

The fact that you’re using a negotiated benefit is not relevant, in itself, to this scenario as long as the company’s actions follow USERRA. They have to allow you to catch up and a certain period of time is available for that, by law. HOW they do that is the “WTF” part. Apparently this process is “lore” in the benefits department. I don’t really know for sure about that last claim, but it certainly feels that way.

I would let the union work this issue, but keep on them and cc union and and company management, so everybody knows what’s going on and nobody drops the ball. Make it clear what your desires are. The bottom line is that you’re in charge of your 401k, here. Tell them what you want and let them work the problem, with your desires in mind. They will eventually work this out. ALPA lawyers are pretty good at this stuff. But you need to push the company to make things happen. ALPA stands behind you and tells them what your rights are. Just remember that this issue is both a Military problem and a You problem. Work your problem for you and who knows, maybe you’ll be the example to be set.

I recommend you follow these steps for MIL Leave issues:

1. Check the CBA/negotiated process for your issue. Attempt to fix it with the company and cc your rep on email traffic.

2. Grieve it if necessary. If the CBA violates USERRA or mediation doesn’t work, your rep with take it from here to ALPA National. They may have already talked to them.

3. ALPA works the legal part and attempts to find a solution for your problem or puts you in an already existing process. They may just have to approach the company to get movement.

4. ESGR- If ALPA can’t find a solution and/or can’t get the company to budge, then the ESGR will get involved.

5. DOL- the Department of Labor can be helpful in some cases. For 401k catch up, I’m not sure what the DOL would do. I think a lot of companies are looking for more guidance.

6. Personal Lawyer. You can, at any time, hire a personal lawyer and use them, regardless of mediation. I would keep ALPA involved in this case, even if you choose to lawyer up. This is a wide-spread problem and someone will solve it.
 
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Richman said:
“Union crap”? You mean like the contract that they negotiated for your benefit that protects your pay, benefits and working conditions? You mean the army of people who stand ready to assist you when you stick a wheel in the dirt and the company is ready to toss you to the media wolves? You mean the processes that protect your job from being outsourced to the lowest bidder?

If not that, what crap do you mean, specifically?
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Crap as in a generic word that encompasses all things.

Triggered much ?
 
falconvalley said:
The fact that you’re using a negotiated benefit is not relevant, in itself, to this scenario as long as the company’s actions follow USERRA. They have to allow you to catch up and a certain period of time is available for that, by law.

That much I knew and understood.

HOW they do that is the “WTF” part. Apparently this process is “lore” in the benefits department. I don’t really know for sure about that last claim, but it certainly feels that way.

Ah, I see.
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Thank you for the very detailed and informative answer, very much appreciated.
 
This is My Screen Name said:
Not sure exactly, that's almost word for word what the Union email said.
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You should try to figure out the details. No clue how big or small your company is but if I was the benefits person it would help to have more info than, “The union told me you’re wrong.” I’m not saying don’t go to the union for help, just that nobody cares about you as much as you.

As for hiring your own lawyer, I’d slow down and figure out what’s required, what the company is doing, if/where there’s a gap, if the company is even aware of the gap, and what they plan to do. You may be able to solve it with a few friendly phone calls, or you may not. But you’ll save money avoiding the lawyer in the short term.

If the company’s contribution is based on you making contributions, you have to contribute before they just automatically put money in. Different companies have different software that tracks all this stuff, and some are more manual than others. Familiarize yourself with “USERRA-deemed compensation”, and know what you have and would’ve been able to contribute. Keep in mind that any TSP contributions you make may reduce your possible contributions at a civilian employer, and subsequently may reduce any match the company may be required to make.

You should be able to speak to someone who actually hits the “DO” button on what you want to happen. Arm yourself by knowing what USERRA requires. You’ve got three times the length of your absence to put forth any make-up contributions, up to 5 years. Again, arm yourself by reading up on USERRA.

If the company’s contribution is predicated on you making contributions, you make yours first and then they match.

If you want to send me a PM I’d be happy to help, as I deal with this stuff almost yearly.
 
Autothrust Blue said:
Calls union work crap, expects union work done on his behalf.

A pilot lacking self awareness isn’t exactly new, but it is real fun every time I see it.
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Actually no I didn't call Union work crap, might want to revisit high school English class.

Hey, thanks for twisting the facts to fit your agenda though I mean you must have earned like 20,000 internet cool points for 'bashing some random' ! Do you get a medal at the yearly awards show for that ?
 
JPilot9 said:
You should try to figure out the details. No clue how big or small your company is but if I was the benefits person it would help to have more info than, “The union told me you’re wrong.” I’m not saying don’t go to the union for help, just that nobody cares about you as much as you.

As for hiring your own lawyer, I’d slow down and figure out what’s required, what the company is doing, if/where there’s a gap, if the company is even aware of the gap, and what they plan to do. You may be able to solve it with a few friendly phone calls, or you may not. But you’ll save money avoiding the lawyer in the short term.

If the company’s contribution is based on you making contributions, you have to contribute before they just automatically put money in. Different companies have different software that tracks all this stuff, and some are more manual than others. Familiarize yourself with “USERRA-deemed compensation”, and know what you have and would’ve been able to contribute. Keep in mind that any TSP contributions you make may reduce your possible contributions at a civilian employer, and subsequently may reduce any match the company may be required to make.

You should be able to speak to someone who actually hits the “DO” button on what you want to happen. Arm yourself by knowing what USERRA requires. You’ve got three times the length of your absence to put forth any make-up contributions, up to 5 years. Again, arm yourself by reading up on USERRA.

If the company’s contribution is predicated on you making contributions, you make yours first and then they match.

If you want to send me a PM I’d be happy to help, as I deal with this stuff almost yearly.
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Much appreciated, I hadn't actually returned to work yet still got three months of orders left. Just gathering facts and getting ducks in a row at this point. Reckon I was a little spring loaded after seeing what my co-worker went through with his civilian job.

Yes, I will need to pay my share of the catch-up.

Thanks for the offer, I will PM if need be.
 
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