It's the end of July, and right about now, I get some panicked questions from employers regarding their retirement plans. It's really to be expected. For calendar-year plans, Forms 5500 are due, so there are questions there. For those plans that required audit (new especially for 403(b) plans for 2009), the audits produce a host of issues that surface from close inspection. As well, employers start to receive their retirement plan's mid-year discrimination tests. The results there give an indication if their plans will pass the discrimination tests at the end of the year.

What if it looks like an employer might fail its discrimination tests at the end of the year? It could mean there is low participation from its non-highly compensated employees (NHCEs). This is the time that an employer should consider "working around" failed discrimination tests. Some things to investigate...