If your employer is not paying pension contributions that should be going into your retirement account, federal law gives you concrete tools to identify the shortfall, force a correction, and recover what you are owed — including money withheld from your own paycheck and any employer match your plan promises. The steps below move from confirming the problem to escalating it, and the sooner you start, the stronger your position.
Figure Out Whether a Contribution Is Actually Late
Two kinds of money can be missing, and they run on different clocks.
Money withheld from your paycheck becomes a plan asset the moment the employer can reasonably separate it from its general business funds. The outer deadline is the 15th business day of the month after the month the money was withheld.1eCFR. 29 CFR 2510.3-102 – Definition of Plan Assets, Participant Contributions For plans with fewer than 100 participants, the Department of Labor treats deposits made within seven business days as timely under a safe harbor.2U.S. Department of Labor. Employee Contributions Fact Sheet The 15-day figure is a ceiling, not a target. If the employer could have deposited the money sooner, the law required it to.
Employer contributions — matching funds, profit-sharing — follow a more generous schedule set by the plan itself and by tax rules. Your Summary Plan Description (SPD) will state whether the match hits per pay period, quarterly, or annually. For deduction purposes, an employer can make a prior-year contribution as late as the due date of its tax return, including extensions.3Internal Revenue Service. Issue Snapshot – Deductibility of Employer Contributions to a 401(k) Plan Made After the End of the Tax Year So a missing match for last year is not automatically late. Check the SPD before assuming a violation.
Confirm the Shortfall on Paper
You need three documents. Pay stubs show what was withheld. Account statements from the plan’s financial institution show what actually landed, and when. The SPD sets the schedule those deposits should follow. Line them up. Biweekly deductions on your stubs with no matching deposits on your statements is a concrete discrepancy.
If you do not get regular statements, request them in writing from the plan administrator. Federal law requires the administrator to furnish the SPD, the latest annual report, and other governing plan documents within 30 days of a written request.4Office of the Law Revision Counsel. 29 USC 1024 – Filing With Secretary and Furnishing Information to Participants and Beneficiaries An administrator who ignores the request faces a potential penalty of up to $110 per day starting on day 31. Cite that penalty in your letter; it tends to focus attention.
Escalate in Order
Talk to HR or Payroll First
Bring the dates, the amounts, and the mismatch. Many missing deposits trace back to payroll glitches or a hand-off between plan providers. A specific, document-based conversation often clears the issue in days.
File a Formal Claim With the Plan Administrator
If internal channels stall, file a written claim for benefits following the procedure in your SPD. The administrator has 90 days to respond in writing. Special circumstances can extend that by another 90 days, but only if the administrator notifies you in writing before the first deadline expires and explains why.5eCFR. 29 CFR 2560.503-1 – Claims Procedure Do not skip this step. Exhausting the plan’s internal claims process is usually a prerequisite to going to court or to a federal agency.
Report It to the Department of Labor
If your claim is denied, missed, or ignored, contact the Employee Benefits Security Administration (EBSA), the arm of the Department of Labor that enforces ERISA. You can file online at askebsa.dol.gov or call 1-866-444-3272 to speak with a benefits advisor. EBSA will review payroll records, plan documents, and banking records, and will likely ask for the evidence you have already assembled. The agency’s enforcement approach favors voluntary correction: if the employer cooperates and deposits the missing money plus lost earnings, EBSA typically resolves the matter without litigation.6U.S. Department of Labor. ERISA Enforcement If the employer refuses, EBSA can refer the case to Department of Labor attorneys for a civil suit.
What Your Employer Owes and What It Faces
Late deposit of employee contributions is a prohibited transaction. The employer owes an excise tax equal to 15% of the “amount involved” — the full contribution, not just the lost earnings — for each year the violation continues.7Internal Revenue Service. 401(k) Plan Fix-It Guide – You Haven’t Timely Deposited Employee Elective Deferrals8Office of the Law Revision Counsel. 26 USC 4975 – Tax on Prohibited Transactions If the problem remains uncorrected, an additional tax of 100% of the amount involved can apply. Beyond the tax, the employer must deposit the missed contributions plus the investment earnings the money would have generated on time.
The Department of Labor also runs a Voluntary Fiduciary Correction Program that lets employers self-correct late deposits and receive some relief from the excise tax.9U.S. Department of Labor. Voluntary Fiduciary Correction Program If your employer says it is “working on it,” ask whether it has entered that program. The answer tells you whether the correction is real.
Suing in Federal Court
If the administrative route fails, ERISA gives you the right to sue in federal court to recover benefits owed under the plan.10Office of the Law Revision Counsel. 29 USC 1132 – Civil Enforcement Federal law also lets the court award reasonable attorney fees and costs to the winning party. Fee awards are not automatic; courts weigh each side’s conduct, the strength of the positions, and the parties’ resources. But the possibility of fee recovery makes smaller claims more practical to pursue.
Watch the deadlines. You must file within three years of the date you first had actual knowledge of the violation, or within six years of the violation itself, whichever comes first.11Office of the Law Revision Counsel. 29 USC 1113 – Limitation of Actions If the employer actively concealed the problem — for example, by falsifying account statements — the clock runs six years from the date you discovered the fraud.
Retaliation Is Illegal
ERISA makes it unlawful for an employer to fire, suspend, discipline, or otherwise punish you for exercising your rights under a benefit plan or reporting a potential violation. The same protection covers anyone who provides information or testifies in a proceeding.12Office of the Law Revision Counsel. 29 USC 1140 – Interference With Protected Rights If retaliation happens, you can sue under ERISA, and the Department of Labor can act on your behalf.13U.S. Department of Labor. Enforcement Manual – Participants Rights Save emails, keep notes on conversations, and preserve copies of every filing. Retaliation claims are easier to prove when the timeline between your complaint and any adverse action is clearly documented.
If Your Employer Files for Bankruptcy
Unpaid contributions to employee benefit plans get priority treatment in bankruptcy, ranking ahead of most other unsecured creditors. The priority is capped at $17,150 per employee as of April 2025 and covers contributions earned within 180 days before the bankruptcy filing.14Office of the Law Revision Counsel. 11 USC 507 – Priorities The cap is adjusted periodically for inflation.
A separate safety net, the Pension Benefit Guaranty Corporation, insures traditional defined benefit pension plans and pays benefits up to legal limits if such a plan is terminated because the employer cannot fund it.15PBGC. Understanding Your Pension and PBGC Coverage PBGC coverage does not extend to 401(k)s or other defined contribution plans, where your account balance is simply whatever has been deposited and invested.
Time works against you either way. Missing contributions lose investment growth for every day they sit outside the plan, the statute of limitations is running, and if bankruptcy comes, you want your claim documented before the filing date. Start with the pay stubs and the SPD, and move through the steps as soon as the discrepancy is real.