Long-term, part-time employees: Guidance has finally arrived

Summary: LTPT employees are employees (other than union employees or nonresident aliens with no U.S.-source income) who are eligible to make salary deferrals solely because they:

• Completed two consecutive 12-months periods or three consecutive 12-month periods with respect to plan years that begin before 2025 (the applicable number of consecutive 12-month periods), during each of which they completed at least 500 hours of service; and
• Attained age 21 by the close of the last of those 12-month periods.

Note: 12-month periods beginning before January 1, 2021 don’t count.

John Hancock viewpoint: The proposed regulations require a strict definition of LTPT employees by satisfying both prongs—age and service. Employees wouldn’t be considered LTPT employees if they enter the plan before satisfying the LTPT employee eligibility requirements. 

For example, if an employee worked the applicable number of consecutive 12-month periods, and during each period had at least 500 hours but didn't attain age 21 by the end of those 12-month periods, this individual wouldn’t be considered an LTPT employee. In this case, the employee wouldn't be subject to the special 500-hour vesting rule, the exemption from nondiscrimination or coverage testing, or the exclusion from employer contributions or top-heavy minimum requirements. 

Summary: LTPT employees become former LTPT employees as of the first day of the plan year following either:

1. The completion of one year of service during which they work 1,000 hours, or 
2. The date they become ineligible due to a change in their employment classification.

Former LTPT employees can’t be excluded from nondiscrimination testing, coverage testing, or top-heavy minimum requirements. They continue, however, to be subject to the 500-hour special vesting rule (more detail in “LTPT employee vesting rules” later in this article).

John Hancock viewpoint: The concept of continuing to apply the special 500-hour vesting rule to former LTPT employees presents administrative challenges and potential operational failures. To avoid an operational failure, employers may want to consider using a 500-hour vesting rule (instead of the 1,000-hour vesting rule) for all participants if the employer’s workforce includes LTPT employees.  

Summary: The 12-month periods for purposes of determining eligibility for LTPT employees are generally the same as those for regular employees, except that 12-month periods beginning before January 1, 2021, don’t count.

The first 12-month period is always the 12-month period that begins on the employee’s hire date. Subsequent 12-month periods may, however, switch to plan years. In this case, the second 12-month period begins on the first day of the plan year that’s within the first 12-month period. This generally results in overlapping service. For LTPT employee determination, all 12-month periods, except 12-month periods that begin before January 1, 2021, must be taken into account. Even pre-severance service must be counted if an employee terminates employment while a LTPT employee and is rehired many years later (the rule of parity doesn’t apply).

John Hancock viewpoint: For calendar plan years, the earliest an employee will be a LTPT employee is January 1, 2024, since 12-month periods before January 1, 2021 are disregarded. For off-calendar plan years, however, an employee could become a LTPT employee in 2023 because of the overlapping service if the service crediting method switches to plan year. It’s unclear whether Congress or the IRS contemplated that LTPT employees could become eligible before the general applicability date of January 1, 2024. Hopefully, transition relief will be issued in the likely event that plans failed to timely permit LTPT employees to make salary deferrals in these situations.

Summary: Certain plans use an alternative crediting method that counts elapsed time, instead of hours, to determine whether the service requirement is satisfied for eligibility. Under the elapsed time crediting method, the service requirement can’t exceed 12 months, so this method cannot be used for purposes of determining LTPT employee eligibility. Employees, however, would enter the plan as regular participants under the elapsed time crediting method before the LTPT employee rules apply. 

John Hancock viewpoint: While the proposed regulations acknowledge that employees who enter the plan under the elapsed time service crediting method wouldn’t be considered LTPT employees, it’s unclear whether elapsed time plans are actually exempt from the LTPT employee rules. There could be circumstances involving rehired employees in which the LTPT employee eligibility requirements are met before a 12-month period of service is completed under the elapsed time rules. Although such circumstances are rare, hopefully, the final regulations will address this issue and exempt elapsed time plans from the LTPT employee rules as plan sponsors won’t be monitoring hours.

Summary: As an alternative to tracking actual hours, a plan may use an hours equivalency service crediting method, provided it’s set forth in the plan document. 

For example, each employee may be credited 45 hours per week for every week the employee works at least one hour. The proposed regulations confirm that this method may be used for purposes of determining whether an employee is an LTPT employee. The equivalencies must satisfy the U.S. Department of Labor (DOL) rules and may not be reduced for LTPT employee purposes. 

John Hancock viewpoint: This method is an option for plan sponsors that want to impose a year of service for plan eligibility but don’t want to track hours or apply the separate rules for LTPT employees. This method is also a good alternative to the elapsed time method as it doesn’t have the complicated rules involving rehired employees.

Summary: The proposed regulations confirm that the LTPT employee rules permit plans to continue to exclude certain employee classifications, provided they aren’t a disguised age or service condition. 

John Hancock viewpoint: Generally, part time, seasonal, or temporary can’t be an excluded employee classification unless the plan contains a fail-safe to ensure the exclusion doesn’t extend beyond the maximum age and service requirements. To comply with the LTPT employee rules, the fail-safe must now provide that part-time, seasonal, or temporary employees can make salary deferrals at the earlier of age 21 and one year of service/1,000 hours or when satisfying the LTPT employee eligibility requirements.

Summary: The regulations confirm that normal entry date rules apply to LTPT employees. Thus, the entry date for LTPT employees may not be later than the earlier of:

1. The first day of the plan year after the LTPT employee eligibility requirements are satisfied, or 
2. Six months after the LTPT employee eligibility requirements are satisfied. 

The entry date, however, may be earlier—for example, monthly entry dates may apply.

John Hancock viewpoint: Since the rule of parity doesn’t apply for employees who terminate employment while a LTPT employee, an employee who terminates employment while a LTPT employee and is later rehired will enter the plan as an LTPT employee on the rehire date. This is the case even if the employee is rehired many years later. A similar rule applies to an employee who transfers to an ineligible employee classification while an LTPT employee and later transfers back to an eligible classification. There’s no delay of entry in either case.

Summary: Generally, salary deferral limits and election opportunities that apply to regular participants also apply to LTPT employees. Additional restrictions, however, generally can’t apply to LTPT employees. Also, it appears that if the plan provides employer matching contributions, LTPT employees must be permitted to make salary deferrals (to the extent permitted under law) in an amount that’s at least sufficient to receive the maximum matching contributions available under the plan for the plan year. Although this is still unclear, an interpretation may be that this applies regardless of whether LTPT employees are eligible for employer matching contributions under the plan. 

If a plan elects to exclude LTPT employees from nondiscrimination and coverage testing, it may exclude LTPT employees from the ability to make catch-up contributions and/or designated Roth contributions under the plan. 

John Hancock viewpoint: The proposed regulations are silent about how the LTPT employee rules interact with automatic enrollment under a plan. It appears that if a plan is subject to mandatory automatic enrollment (Section 101 of SECURE 2.0), there’s no exemption for LTPT employees. In this case, the automatic enrollment rules under that provision must apply. For plans that are exempt from mandatory automatic enrollment, but for which automatic enrollment applies to regular participants, LTPT employees may be excluded from the automatic enrollment provisions to the extent such exclusion is permitted under the plan document and able to be administered by the plan’s recordkeeper. Special rules, however, may apply to certain automatic contribution arrangements known as EACAs and QACAs. Applying different automatic enrollment rules for LTPT employees than for regular participants, however, may add unnecessary complexity. Similarly, to simplify plan administration, LTPT employees should be eligible to make catch-up contributions and/or designated Roth contributions to the extent permitted for regular participants.

Summary: LTPT employees or former LTPT employees (as defined above) will be credited with a year of vesting for each 12-month period they work at least 500 hours (versus 1,000 hours), excluding periods of service before January 1, 2021 (or January 1, 2023, for 403(b) plans). The proposed regulations clarify that for purposes of determining vesting for LTPT employees, 12-month periods may be any computation periods that are permitted for regular participants, e.g., plan years or employment anniversary years. All 12-month periods are taken into account, except for 12-month periods before January 1, 2021, and periods of service that may be excluded under the regular vesting rules.

John Hancock viewpoint: The 500-hour vesting rule applies whether or not employer contributions were received while the employee was an LTPT employee and continues to apply to former LTPT employees. To avoid having to administer two sets of vesting rules (500 and 1,000 hours), and for employee morale, plan sponsors may want to consider reducing their vesting requirement to 500 hours within a 12-month period for all participants, not just for LTPT employees.

Summary: To the extent that certain testing would otherwise apply to the plan, plan sponsors may elect to exclude LTPT employees from the following: 

1. ADP testing, 
2. ACP testing, 
3. ADP safe harbor provisions, 
4. ACP safe harbor provisions, 
5. Testing under IRC §401(a)(4) (benefits, rights and features, and general testing), and 
6. Coverage testing. 

This election is an all-or-nothing requirement. Plan sponsors can’t pick and choose which of these tests will apply and which ones won’t. In order for a 401(k) safe harbor plan to satisfy the election requirements, the plan document must clearly provide that LTPT employees are excluded from the ADP and ACP (if applicable) safe harbor provisions. In that case, the exclusion must apply to all other applicable nondiscrimination and coverage testing requirements. If the plan isn’t a 401(k) safe harbor plan (i.e., is subject to ADP and, if applicable, ACP testing), the election to exclude LTPT employees from nondiscrimination and coverage testing isn’t required to be in the plan document, but in order for an employer to be permitted to make such election, the plan document must have enabling language; otherwise, all such testing will apply. 

LTPT employees can’t be excluded from the employer contribution requirement under SIMPLE 401(k) plans.

John Hancock viewpoint: It appears that for non-safe harbor 401(k) plans, if “enabling language” is in the plan document, a plan sponsor may decide on an annual basis to include, or make an election to exclude, LTPT employees in testing, depending on which test results are better. An election to exclude LTPT employees from ADP and, if applicable, ACP safe harbor provisions, however, must be clearly provided in the plan document and made before the plan year. 

Because LTPT employees are considered otherwise excludable employees as they didn’t have one year of service during which they worked 1,000 hours, they may be tested separately in the event an election isn’t made. The otherwise-excludable testing group automatically passes if there are no highly compensated employees in that group, which is often the case.  

Summary: The proposed regulations clarify that the employer may make an election to exclude all LTPT employees from from the top-heavy vesting and minimum contribution requirements (although top-heavy vesting is generally not applicable to 401(k) plans). This election is independent from the election to exclude LTPT employees from nondiscrimination and coverage testing. 

In other words, an employer can elect to include LTPT employees in nondiscrimination and coverage testing but exclude them from top-heavy requirements, or vice versa. The election to exclude LTPT employees from top-heavy requirements, however, must be reflected in the plan document. Regardless of any election, LTPT employees’ account balances are always included to determine whether the plan is top heavy, to the extent they’d be included for regular participants. Also, any election to make, or not make, employer contributions for LTPT employees won’t affect the ability to use the special exemption from top-heavy rules afforded to safe harbor 401(k) plans. 

John Hancock viewpoint: Plan sponsors may exclude LTPT employees from receiving safe harbor contributions and still be eligible for the top-heavy exemption for safe harbor plans. Under current guidance, however, the top-heavy exemption for safe harbor plans doesn’t apply if employees, other than LTPT employees, are subject to different eligibility requirements for salary deferrals than for safe harbor employer contributions. This rule has significance because some plan sponsors may be amending their plan (including a safe harbor plan) to avoid the LTPT employee rules by reducing the eligibility requirement, but only for salary deferrals. These plan sponsors may not realize this affects their ability to use the top-heavy exemption for safe harbor plans. Without this top-heavy exemption, all participants under a top-heavy plan will be subject to the top-heavy minimum contribution requirement (other than employees who either haven’t attained age 21 or worked 1,000 hours in a 12-month period). This can significantly increase the employer contribution expense. Plan sponsors that want to reduce their service requirements to avoid having any LTPT employees should do so for both salary deferrals and safe harbor employer matching contributions (not just salary deferrals), if they want to continue to rely on the top-heavy exemption for safe harbor plans (unless new guidance changes this rule). 

Summary: The plan sponsor may, but isn’t required to, make employer nonelective or matching contributions to LTPT employees. The exclusion of LTPT employees from nondiscrimination and coverage testing isn’t conditioned on whether or not employer contributions are made. As explained earlier in the "Nondiscrimination and coverage testing" section, if LTPT employees are excluded from nondiscrimination testing, however, the plan must provide they’re also excluded from the ADP/ACP safe harbor provisions. In this case, employer contributions can still be made to LTPT employees, but they wouldn’t be considered safe harbor contributions.

John Hancock viewpoint: While it’s clear that plan sponsors may make employer contributions for LTPT employees, it may be best to hold off on this, at least for the time being, due to the new interpretation of certain LTPT employee rules. Many recordkeepers and software providers may not have had the resources to pivot in time to modify systems that were scheduled to be released for January 1, 2024. Corrections of inevitable operational failures will be more costly if employer contributions are involved.

Summary: The proposed regulations don’t change any rules pertaining to Form 5500 or Form 5500-SF, as such rules are under the jurisdiction of the DOL. The instructions to the Form 5500 and Form 5500-SF, however, have been updated to only count participants with an account balance in order to determine whether a plan is a small filer for eligibility of the audit waiver. 

John Hancock viewpoint: The change to the methodology for determining participant counts is welcome news, as this will lessen the impact of LTPT employee coverage for Form 5500 reporting and other related provisions for small plan filers. But plan sponsors of owner-only plans (also known as solo 401(k) plans) that previously filed a Form 5500-EZ should be aware that they may have to file a Form 5500-SF or Form 5500 and become subject to other ERISA requirements if they employ any nonowner LTPT employees. 

Summary: Amendments to comply with the LTPT employee rules under the SECURE Act and SECURE 2.0 must be adopted by December 31, 2026 (pursuant to IRS Notice 2024-2), with a later deadline for governmental plans. The proposed regulations clarify that the December 31, 2026, deadline also applies for amendments that reduce a plan’s service requirement to avoid the LTPT employee rules. 

For example, the amendment deadline applies if an employer intends to amend a plan, effective January 1, 2024, to reduce the plan’s service requirement from one year of service/1,000 hours, to immediate on the employee’s hire date, provided the plan is operated in accordance with the intended plan amendment. In this case, the plan complies with the LTPT employee rules, although no employee will enter the plan as an LTPT employee. 

John Hancock viewpoint: It was a welcome surprise that the proposed regulations took the broad interpretation of related provisions of the LTPT employee rules, such as a change to reduce eligibility requirements, when applying the SECURE amendment deadline. Without this guidance, it appeared that changes to reduce eligibility, other than solely to provide for the LTPT employee eligibility requirements, would’ve been subject to the more restrictive discretionary amendment deadline (i.e., the end of the plan year in which it’s effective). It seems that the U.S. Department of the Treasury and the IRS understood the complexities of this provision and wanted to help plan sponsors by giving them this opportunity to make these types of plan changes without having to execute an amendment before the LTPT employee rules kick in.   

The content of this document is for general information only and is believed to be accurate and reliable as of the posting date but may be subject to change. It is not intended to provide investment, tax, plan design, or legal advice (unless otherwise indicated). Please consult your own independent advisor as to any investment, tax, or legal statements made.

This viewpoint is intended for a plan sponsor audience.

MGTS-PS  552042-GE   01/24   552042          MGR0122243340276