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USERRA and 401 K

Old 09-08-2022, 08:53 AM
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https://www.justice.gov/opa/pr/justi...eserve-veteran


FOR IMMEDIATE RELEASE
Wednesday, September 7, 2022

Justice Department Secures Relief Against American Airlines for Air Force Reserve Veteran

The Justice Department announced today that it had resolved a claim that American Airlines (American) violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) by underfunding the 401(k) retirement account of Thomas P. Harwood III, a veteran of the U.S. Air Force Reserve, after he returned to work from various military obligations. Mr. Harwood is a Major General (O-8) (Ret.) who joined the U.S. Air Force in 1981, served in the U.S. Air Force Reserve from 1991 until his retirement in 2016, and has worked for American Airlines as a commercial pilot since 1992
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Old 09-09-2022, 05:11 AM
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I wonder how the law applies if the employer only has a 401k match not a direct contribution? Piedmont a AA owned airline believes they have no obligation in that situation.
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Old 09-09-2022, 08:59 AM
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Originally Posted by sailingfun View Post
I wonder how the law applies if the employer only has a 401k match not a direct contribution? Piedmont a AA owned airline believes they have no obligation in that situation.
Not clear, court would have to decide.

Actually, these sorts of lawsuits are typically based on the "me too" provisions of USERRA which specifies that employees on mil leave shall be afforded all of the benefits offered to ANY other employees on leave. So it would probably come down to that. Example, employers who virtue signal wokeness by offering paid pregnancy leave for women then find themselves having to provide full pay to those on mil leave as well.
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Old 09-10-2022, 05:26 PM
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Originally Posted by rickair7777 View Post
Not clear, court would have to decide.

Actually, these sorts of lawsuits are typically based on the "me too" provisions of USERRA which specifies that employees on mil leave shall be afforded all of the benefits offered to ANY other employees on leave. So it would probably come down to that. Example, employers who virtue signal wokeness by offering paid pregnancy leave for women then find themselves having to provide full pay to those on mil leave as well.
When I returned long term Mil leave, I had to contribute the required contributions for each year of Mil leave to trigger company contributions. Hardest part was getting to the correct person to set it up! Law allows 401K contributions (minus any TSP) and requires company to contribute as it normally would. This includes after tax contributions to the IRS limit for that year.
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Old 09-11-2022, 03:46 AM
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Originally Posted by rickair7777 View Post
Example, employers who virtue signal wokeness by offering paid pregnancy leave for women then find themselves having to provide full pay to those on mil leave as well.
wow! Which airlines offer that?
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Old 09-11-2022, 07:45 AM
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Originally Posted by Profane Kahuna View Post
wow! Which airlines offer that?
At least one them, they lost the case.
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Old 09-11-2022, 07:46 AM
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Originally Posted by Flying Boxes View Post
When I returned long term Mil leave, I had to contribute the required contributions for each year of Mil leave to trigger company contributions. Hardest part was getting to the correct person to set it up! Law allows 401K contributions (minus any TSP) and requires company to contribute as it normally would. This includes after tax contributions to the IRS limit for that year.
Any idea if USERRA specifies that, or if it was triggered by the me too provision? That would vary by airline depending on what they offer for other LOAs.
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Old 09-14-2022, 04:43 PM
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Originally Posted by rickair7777 View Post
Any idea if USERRA specifies that, or if it was triggered by the me too provision? That would vary by airline depending on what they offer for other LOAs.
not %100 sure. Company had to determine imputed earnings to determine how much of my makeup contributions could be tax free and how much after tax. Talking to financial company they said Mil leave years contributions were separate contribution from current year contribution. And suggested I contribute the required amount for each year first to trigger the company match! Then which year was irrelevant.

401k did not appear to be related to any me too clause. Retirement is separate issue. Sick accrual and eventual retirement addition was part of me too relating other LOA benefits.

Companies donít just give you 401K makeup. It is USERRA. And I think it also required any match for those makeup years.

hope this helps others!
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Old 12-11-2022, 10:52 AM
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https://www.irs.gov/retirement-plans...erra-and-sscra

Iíve gone through this at a company without direct contribution, where we have to contribute to get a match.

After returning from long term mil, I got a letter from the company with an annual breakdown by years I was gone. As noted above, itís based off USERRA-deemed compensation. It listed how much I needed to contribute to get the match, plus the max I could contribute up to the annual max for each ďmissedĒ year while I was on military. It also payed out the end date for making contributions (three times the leave length or five years, whichever was shorter, I believe).

For example, it was $18,000 in 2016. I could contribute $4,000 to get the full company match and another $14,000 to max it out (numbers are fictional). This is all in parallel with your current-year 401(k).

Make-up contributions filled the first eligible year bucket first. 2013, then 2014, etc. In 2016, when I got my W-2 for 2015, it listed Box 12, D codes by year to account for what was make-up contributed to each year:

D13 $8,000 (for 2013)
D14 $8,000 (for 2014)
D $10,000 (for 2017)

In 2017, my W-2 for 2016 had D14 for any remaining make up for 2014, D15 for 2015, etc. Had to file paper by hand since it was so rare the common tax software systems at the time couldnít ingest D14 codes.

Thatís way down in the weeds on details, but hopefully it helps.
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