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A client of mine came today with a scenario that I had never seen. She had worked for a company for three years, held about $60K in a 401K, but four months after being laid off she hasn't been able to rollover her funds to an IRA. Since she's had trouble finding a job in software (cutbacks), she doesn't want to sue or cause legal trouble for her former employer, as it would cause a loss of money and look bad for future companies.

However, $60K isn't nothing and the company's plan is expensive (no index funds; every mutual fund has a minimum of a 1.5% fee)

  1. Is it legal for a company to hold 401k money after a layoff for over four months? The administrator cannot let her transfer because they have not received any lay off notice.
  2. In her case, she doesn't want to sue for obvious reasons even though I feel she's being bullied; are there any other options she has - such as a form to submit to the administrator requesting the funds that can override the lack of a notice?
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  • I love how companies will put the employees 401k's into expensive plans and then not tell them. My last company did only index funds and heavily advised against mutual funds with high fee's.
    – Jdahern
    Commented Aug 27, 2015 at 17:45

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This sounds like a really bad communication issue. I would contact the company to find out what is up and inform them politely that they have been given more than a "reasonable" time to release the 401k. I would also inform them that they need to expedite the notice and offer to stay on the phone while they contact the plan administrator. If they give you any resistance or if the issue persist, I would inform them that they may be in violation of the Department of Labor ERISA guidelines and may be subject to fines by the Department of Labor. If you get any attitude, file a complaint with the Department of Labor (Federal).

I would also call the plan administrator and ask them to verify employment since she has not been employed. That may go a bit further.

Just as a personal comment,

I have noticed with companies that are not doing the right thing because you are the little guy, is that filing complaints is easier than lawsuits. No company wants the Department of Labor on there back looking at their records or books. And normally, the governing agencies will motivate the company to do the right thing. One time I sent an email to the CEO of the company and within 48hrs my issue was solved.

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