Oops, I Forgot To Distribute A Safe Harbor Notice For My Company's 401(k) Plan, Now What?


The Internal Revenue Service often publishes correction methods for common errors involving qualified retirement plan administration issues. One of the most common errors is failing to notify eligible employees of their safe harbor 401(k) plan rights and deferral opportunities. In general, a safe harbor 401(k) plan is a retirement plan that must provide for employer contributions that are fully vested when made and is exempt from certain annual discrimination testing requirements. As a condition of being a safe harbor plan, a safe harbor notice must be provided. Employers need to provide the safe harbor 401(k) plan notices to employees at least 30 days (and no more than 90 days) before the beginning of each plan year. For newly eligible employees, the notice must be provided no sooner than 90 days before the employee first becomes eligible and no later than the employee's actual eligibility date. Failing to provide the notice is considered an operational failure under the IRS’ Employee Plans Compliance Resolution System (EPCRS). Correcting the mistake depends on the impact the failure has on the particular participant(s). For example, if the failure caused an employee to miss an elective deferral opportunity, the employer may be obligated to make a contribution to the plan on the employee’s behalf in an amount sufficient to make up for the missed deferral opportunity (and any missed matching contributions too). Alternatively, if the employer can show that an employee already was fully informed of the plan's features and the method for making elective deferrals, the failure to provide notice may be corrected simply by revising procedures to ensure that future notices are provided to employees in a timely manner. Depending on the circumstances, failing to provide the safe harbor notice may be corrected through the Self-Correction Program or the Voluntary Correction Program of EPCRS. Employers can find out more about this common correction method at the IRS’ website.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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