U.S. Labor Department Sues Florida Firm and Owner to Restore Delinquent 401(k) Contributions

Archived News Release — Caution: Information may be out of date.

Miami, Florida - The U.S. Department of Labor sued Telcon, Inc. of Pompano Beach, Florida and its president for failure to forward and timely remit contributions deducted from employees’ paychecks to the company’s 401(k) plan.

“The law states that plan fiduciaries have a responsibility to manage the money set aside in retirement plans for the benefit of employees and their families,” said Howard Marsh, director of the department’s Atlanta regional office of the Employee Benefits Security Administration (EBSA). “Our legal action is designed to restore money to pay future benefits to these plan participants.”

The lawsuit alleges that Telcon and Giovanni D’Alessandro violated the Employee Retirement Income Security Act when they failed to remit or timely forward employee contributions to the plan beginning in October 1998 and used the assets for the day-to-day operations of the company.  D’Alessandro also served as the plan’s trustee.

The suit seeks to require that the defendants restore to the plan all losses with interest and correct any transactions prohibited by law. The department also asked that D’Alessandro be permanently barred from serving as a fiduciary to any plan governed by ERISA in the future.

Telcon, which is the plan administrator, is a utility contractor. The 401(k) plan covered 24 participants and had $215,673 in assets as of September 30, 2003.

Employers with similar problems who are not yet the subject of an investigation by EBSA may be eligible to participate in the department’s Voluntary Fiduciary Correction Program (VFCP). Participation in the VFCP requires employers to make workers whole but allows them to avoid EBSA enforcement actions and civil penalties as well as any applicable excise taxes. For more information about the VFCP, see www.dol.gov/ebsa.

The case, filed in federal district court in Miami, Florida, resulted from an investigation conducted by the EBSA’s Atlanta regional office. In fiscal year 2004, EBSA achieved record monetary results of $3.1 billion related to the pension, 401(k), health and other benefits of millions of American workers and their families. Employers and workers can contact the regional office at 404.562.2156 or EBSA’s toll free number, 1.866.444.EBSA (3272), for help with problems relating to private-sector pension and health plans.

(Chao v. Telcon, Inc.)
Civil Action No. 04-61557

U.S. Labor Department news releases are accessible on the Internet at www.dol.gov. The information in this news release will be made available in alternate format upon request (large print, Braille, audio tape or disc) from the COAST office. Please specify which news release when placing your request at 202.693.7765 or TTY 202.693.7755. The U.S. Department of Labor is committed to providing America's employers and employees with easy access to understandable information on how to comply with its laws and regulations. For more information, please visit www.dol.gov/compliance.

Archived News Release — Caution: Information may be out of date.