U.S. Department of Labor obtains judgment restoring 401(k) assets to employees of defunct Acworth, Georgia, construction company

Atlanta – The U.S. Department of Labor has obtained a default judgment in federal district court in Atlanta ordering Concrete Construction Co. of Acworth, Georgia, and its president, Craig Wagner, to restore $11,672 due to the failure of the defendants to prudently manage the funds, to the company’s 401 (k) retirement savings plan. The payment is comprised of delinquent employee contributions, uncollected employer matching contributions, and lost earnings on the employee contributions.

“We are pleased that the federal court in Atlanta has ordered the company and its president to restore funds that employees are counting on for their retirement,” said R.C. Marshall, regional director of the department’s Employee Benefits Security Administration (EBSA) office in Atlanta, which investigated this case.

The judgment results from a Labor Department lawsuit alleging that the defendants violated the Employee Retirement Income Security Act (ERISA) when they withheld employee contributions to the plan and illegally co-mingled the contributions with the general assets of the company between March and August 2003. The defendants allegedly failed to remit matching employer contributions to the plan from March to December 2003.

Besides restitution to the plan, the order appoints M. Larry Lefoldt as independent fiduciary to oversee the plan, removes the defendants as plan fiduciaries, and bars them from serving as fiduciaries of any employee benefit plan covered by ERISA.

Concrete Construction, which ceased operations in 2005, prepared sites for the installation of utilities.

Employers with similar problems who are not yet subjects of EBSA investigations may be eligible to participate in the department’s Voluntary Fiduciary Correction Program. Participation 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, see www.dol.gov/ebsa.

This case resulted from an investigation conducted by EBSA’s office in Atlanta. Employers and workers can reach EBSA’s Atlanta Regional Office at 404.302.3900 or toll-free at 866.444.3272 for help with problems relating to private sector retirement and health plans. In fiscal year 2008, EBSA achieved monetary results of $1.2 billion related to pension, 401(k), health and other benefits for millions of American workers and their families.

Chao v. Concrete Construction Inc.
Civil Action Number 1:07-cv-01259-JOF

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