The company I work for is a getting ready to spin off from the parent company. In doing so they are changing our retirement from and ESOP to a 401k. They are telling us that they are only going to roll over the vested amount from the ESOP to the 401 which is my case will only be 10%. Is this legal? Are there any government guidelines that I could reference?

Hi jlsilver ---

Is it correct to assume that the ESOP is maintained by the parent company? Is the non-vested portion of your ESOP account being forfeited? Or is it being held for your benefit under the ESOP subject to your completing additional years of vesting service with the "spun off" company? What is the form of the "spin off"......are the shareholders of the parent company going to become the shareholders of the "spun off" company? Or is your company being sold to a third party?

Yes, the ESOP is maintained by the parent company. It is my understanding that the non-vested portion of the ESOP will be forfeited. I think the parent company will still own 1/3 of the new company. They haven't told us everything about the spin off yet.

jlsilver ---

It appears that you'll be treated as having terminated service under the ESOP's vesting provisions. Whether this is legal may depend on the specific terms of the ESOP and the specific details of the "spin off" transaction.

It would seem that you need to look to see if you have a partial termination issue here.