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401k held after termination California

On Lawyer & Legal » Employment & Labor Law

5,512 words with 4 Comments; publish: Thu, 05 Apr 2007 01:52:00 GMT; (80062.50, « »)

I was terminated at my job although I had a spotless record, was a senior tech, and night foreman for a while. For disagreeing with the svc. mgr. regarding bonus pay for proficiency, I was accused of not wanting to work there even though I was employed there for over 4 years. I was fired for 'failure to meet expectations' which were above and beyond what the other techs standards were. My proficiency for the past few months was above the 85% cutoff to earn a bonus yet was fired for expectations not met? I don't care that I was fired but can they retain my 401k so that I can't use it? I was 80% vested, have an outstanding loan out on it, and need it to pay for the rest of my tuition in September. What if the investment goes down into the tank while I no longer work there and since I was terminated unwillingly, how can they keep my investment money? What recourse do I have? Thanks for any advice.

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    • cbg: Depending on the plan document, you may not necessarily have access to immediate distribution. I've seen at least one plan that was set up for an annual distribution

      Although rare, I've even seen them where they will say no distribution until normal retirement age (e.g., age 65).

      smackchapp: What if the investment goes down into the tank

      Assuming your 401(k) is the self-directed type that allows you to choose between various investments alternatives (mutual funds, money market, etc.) you can shift your money around as you deem appropriate to minimize this risk.

      #1; Thu, 05 Apr 2007 03:14:00 GMT
    • They cannot "keep" your 401k money in the sense that you never receive it; at least, not the vested part. But when they have to distribute it to you is determined by your plan document. You should at some point (and you can call and ask for it if you do not) receive paperwork advising you of the various options available to you; cash out, rollover, etc. as well as the various consequences, if any (tax, penalties).

      Depending on the plan document, you may not necessarily have access to immediate distribution. I've seen at least one plan that was set up for an annual distribution - if the distribution was in January and you quit in February, you had to wait until the following January to receive it. It wasn't that they could distribute it any time up to the next January, legally they COULD NOT release that money until January.

      This is not common - immediate (upon receiving your completed distributions forms - and "immediate" generally means within two to three weeks of their receiving your forms - it just takes that long) is far more common. Quarterly is also seen frequently. But whatever it says in the plan document, that's what they have to do.

      All that being said, you seem quite convinced that they have no intention of ever giving you your 401k money. Why is that? How long has it been since your termination?

      #2; Thu, 05 Apr 2007 02:03:00 GMT
    • I was suspended without pay on 3/9/07 and recieved a letter of termination on 3/16/07 for failure to meet expectations. What those expectations are, I don't know because I was a senior tech and knew my job and performed well above many other techs. I only had issues of fairness with the service manager regarding me having to stay until closing even if there is no work available which means that while you're getting paid, the company sees that time as unproductive so you take a hit on proficiency. I stated that in order for that new policy to work, the technician should be allowed to go home or willingly take the unproductive time if there's no work or take that time and make it exempt from bonus calculations if it's mandatory. In that case, all the night techs have to be included in the selection of who stays but I was being singled out because I was the night foreman and I should stay to help close with the new service writer. I said it's unfair and would never fly with the day shift so I was accused of not wanting to work there even though I had the longest tenure among the night techs and half of the day techs. I was never given any paperwork regarding my 401K disbursement and I was finally called back after leaving at least 5 messages with the HR dept. in Seattle on 4/3/07, almost a month since the suspension and 3 weeks since termination. I also never recieved any enrollment options regarding medical coverage after termination. I never burned any bridges with anyone except the svc mgr but I never had a complete fallout either. I just stated to him that for an ex serviceman (Marines) from another ex serviceman (ARMY, me) that his leadership skills are lacking considering the military time we both spent and the leadership school I graduated from as second honor grad, I understand leadership. Sorry for the lengthy history here but I just want to know if I can get my money that is rightfully mine to help pay my tuition which for my final 4 classes, costs a staggering $7200, with that retirement fund.
      #3; Thu, 05 Apr 2007 02:38:00 GMT
    • You're still well within the legal limits for paperwork on medical termination; they have up to 44 days after the last day of your coverage (which is not necessarily the last day of employment) to send that to you.

      As I said, yes, you can get the 401k money. You may have to wait a while depending on the distribution schedule of that particular plan. You WILL have to pay taxes and penalties on it if you do not roll it over into another qualified plan (either another 401k plan or an IRA). But there's no question that at least the vested part is or will be available to you.

      #4; Thu, 05 Apr 2007 02:48:00 GMT