How canI quit a company funded retirement trust?

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How canI quit a company funded retirement trust?

I am not vested and never will be. A dollar an hour is taken from “the company contribution” that should be going to my 401 k  but is being used to prop up a failing trust.

Asked on January 7, 2012 under Employment Labor Law, California


William Price / Growthlaw

Answered 12 years ago | Contributor

The company's trustees may be liable for a fiduciary duty claim under both state law and the federal Employee Retirement and Income Security Act, if they have been diverting payments to a "failing trust" and not setting aside actuarily reasonable amounts to pay claims. That said, however, if you never will be vested, you may not have any claim to proceeds. You should get benefits counsel to review your plan documentation and record of contributions to determine what is owed you, and when you would be entitled to benefits -- or whether there is a diversion from people besides you that might support a class action against the plan trustees and your employer, for conversion and for other breaches of fiduciary duty. 

That said, lawyers are expensive, and you will have to pay them by the hour, along with an accountant or other expert on benefits, if the proof of diversion is difficult to make based on the records you now have in hand, or know you could get from the company.

Documentation of a case, and then a claim for benefits as due (and/or a statement from the company that they would pay you an amount certain upon certain events, such as your retirement, if you request a specific statement of benefits from the 401(k) plan trustees) should come first, whether you are hiring a lawyer or proceeding on your own. If an accounting or benefits payment (when due) is denied, then litigation under ERISA and fiduciary duties statutes can be considered. This can be costly, however, and the cost of litigation should be measured against the benefits you could expect to receive if you win. Attorney fee and costs awards are possible, but only after successful claims or litigation. 

Hope this helps,


Bill Price

William A. Price

Attorney at Law

[email protected]

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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