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Also think about, by suggesting a Safe Harbor 401(k) (Matching) plan design for this law firm, what happens if one of the Non-Highly Compensated Employees leaves the law firm? Does the law firm have to worry about possible effects on nondiscrimination or compliance testing? In a Safe Harbor 401(k) plan design, this law firm's plan could omit certain nondiscrimination tests (ADP and/or ACP tests) provided the plan satisfies specific criteria regarding contributions, vesting and providing information to their employees. Since certain nondiscrimination tests are omitted, there would be less worry about the consequences of failing nondiscrimination testing if one of the Non-Highly Compensated Employees were to leave the law firm.

Because Safe Harbor plans allow Highly Compensated Employees to defer the maximum amount of compensation permitted by law without worrying about nondiscrimination test issues, Safe Harbor plans are advantageous for employers that have Highly Compensated Employees looking to maximize their contributions. In addition, an employer with a top heavy plan could benefit from the Safe Harbor plan design because the employer's Safe Harbor contributions may be counted toward satisfying top heavy contribution requirements. However, the cost to eliminate these nondiscrimination tests is making mandatory Safe Harbor contributions to eligible employees. So, the employer must be willing and able to make the appropriate contributions to the plan and the Safe Harbor contributions must be 100 percent vested immediately.

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