U.S. Labor Department Administrative Law Judge rules bankruptcy and loss of records not a basis to waive civil penalty

Cherry Hill, N.J. – The plan administrator of the Airport Hospitality, LTD 401(k) Plan now located in King of Prussia, Pennsylvania, was ordered to pay the $86,500 penalty assessed by the U. S. Department of Labor's Employee Benefits Security Administration (EBSA), according to the decision and order of the department's Office of Administrative Law Judges.

The administrator appealed EBSA's civil penalty assessment for violating the annual reporting requirements of the Employee Retirement Income Security Act (ERISA). The plan's administrator failed to file a complete and accurate Form 5500 Annual Return/Report for the 2004 plan year. The report was rejected because the administrator failed to attach an acceptable independent qualified accountant's opinion and a schedule of assets held for investments.

The court found that the administrator's bankruptcy did not relieve the administrator of its duties and that it deliberately elected to sell its business locations without preserving the plan records as required by ERISA.

According to the decision, compliance with the annual reporting requirements alone preserves the intention of ERISA, which is to protect the rights of the employees whose money is being held by the plan. The administrator's excuse and apologies for why it failed to maintain records and file a compliant report cannot substitute for that protection.

"Hotel workers are among the most vulnerable participants we protect," said Ian Dingwall, chief accountant of EBSA. "This case sends a strong message to employers that they must keep personnel and payroll documents for a sufficient time period so they can be checked for accuracy and completeness."