As previously discussed on this blog last summer (July and August, 2011 and then again earlier this year in April), the DOL has officially released a formal opinion, DOL 2012-04A dealing with the concept of the Open MEP or unrelated employer Multiple Employer Plan. The letter can be found here:
http://www.dol.gov/ebsa/regs/aos/ao2012-04a.html
I'm going to refer to this letter as the Toth Letter - as he is the party it is addressed to. The questions posed in the request by Mr. Toth were as to whether the 'Advantage 401(k)' operated by 401(k) Advantage LLC and TAG Resources would be viewed by the DOL as a single "employee pension benefit plan" even though it was to provide services to multiple otherwise unrelated employers.
Please peruse the letter for the details, but the result of this letter is that this plan (and assumingly others like it) would not be considered a single plan, but rather a group of individual plans. It also reaffirms the notion that adopting employers of MEP programs are still considered to be fiduciaries under the meaning of ERISA. From this author's point of view, this is not surprising news, but rather reaffirming of what we've been saying all along.
Nonetheless, it does give a viable source opinion to refute any assertion that Open-End MEP programs are a "magic bullet" for employers.
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