Alameda Center for Rehabilitation & Healthcare, LLC

National Labor Relations Board - Administrative Judge Opinions

Mar 20, 2020

22-CA-180564 (N.L.R.B. Mar. 20, 2020)

JD(NY)–02–20
Perth Amboy, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALAMEDA CENTER FOR
REHABILITATION AND HEALTHCARE, INC.
And Cases 22-CA-180564
22-CA-188462
1199 SERVICE EMPLOYEES INTERNATIONAL
UNION, UNITED HEALTHCARE WORKERS EAST,
NEW JERSEY
Sharon Chau, Esq., for the General Counsel.
David F. Jasinski, Esq. (Jasinski, P.C.), for the Respondent.
William Massey (Gladstein, Reif & Meginniss, LLP), for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BENJAMIN W. GREEN, Administrative Law Judge. This compliance proceeding was
tried before me in Newark, New Jersey, on January 7, 2020, pursuant to an amended
compliance specification issued by Region 22 of the National Labor Relations Board.
On October 26, 2017, Administrative Law Judge Kenneth W. Chu issued a decision
wherein he found that the Respondent violated Section 8(a)(5) and (1) of the Act by
withholding employee contributions and employer matching contributions to a 401(k) plan.1
Judge Chu’s decision was adopted by the Board on December 11, 2017 and the Board
order was enforced by the Third Circuit Court of Appeals on August 10, 2018.
At issue in this supplemental compliance proceeding is the dollar amount of 401(k)
contributions the Respondent shall be ordered to make, if any, on behalf of certain
employees for the pay dates between May 5, 2016 and January 12, 2017.2 The compliance
specification included, in “Attachment A – Revised 1/7/2020,” a table reflecting certain
Regional compliance calculations. The same table has been largely recreated and
appended hereto as “Attachment A.”3
1 Judge Chu also found that the Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the union bargaining representative of a unit of licensed practical nurses
(LPN). However, the remedy of that violation is not in dispute and at issue here.
2 These pay dates cover pay periods from April 17, 2019 (the first day of the Respondent’s first
pay period) to January 7, 2017 (the last day of the last pay period for which the Respondent made
no contributions to a 401(k) plan). The Respondent began making appropriate contributions to a
401(k) plan on pay date January 26, 2017 for the pay period January 8 to 21, 2017.
3 The appended table contains slightly different totals for columns J, L, and M in the amounts of
$807.23, $1,524.46, and $29,091.31, respectively, while the Region’s table contains totals of
$807.22, $1,524.45, and $29,091.33 for the same columns.
JD(NY)–02–20
2
In making my findings, analysis, and conclusions, I have considered the entire
record and briefs filed by the General Counsel and the Respondent.
Facts
As described in Judge Chu’s decision, on April 21, 2016, the Respondent purchased
from AristaCare at Alameda (AristaCare) the nursing home and rehabilitation center at 3035
Elm Street, Perth Amboy, New Jersey. 1199 Service Employees International Union,
United Healthcare Workers East, New Jersey (Union) represented a unit of LPNs employed
at this facility before and after the sale. The Union and ArtistaCare were parties to a
collective-bargaining agreement that included the following provision in Article 31.1:
10
Each employee who has completed at least one (1) years of continuous
service and worked 1,000 hours the previous year shall be eligible to
participate in the 401(k) Plan. Employer shall match 50% of each employee’s
contribution, up to a maximum of 3% of the employee’s gross salary.
15
On February 11, 2016, in anticipation of the sale, the Respondent signed a “Status
Quo Agreement” adopting the terms of the Union’s contract with AristaCare. Upon the sale
of the facility in April 2016, AristaCare’s 401(k) plan was terminated. The Respondent did
not obtain a replacement 401(k) plan until January 2017.
20
As noted above, the Board adopted Judge Chu’s decision that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing to immediately secure a replacement
401(k) plan when the predecessor’s plan was terminated. Judge Chu noted in his decision
that the General Counsel sought to hold the Respondent liable for employee contributions
as well as its own matching contributions, but reserved this issue for resolution in a 25
compliance proceeding.
In calculating the monetary remedy, Regional compliance officer Rhonda Fricke did
not have access to the 401(k) plan account statements or payroll records for unit employees
while they were employed by AristaCare. Fricke only had access to the Respondent’s 30
payroll records beginning April 2016.
The Respondent’s first pay period, for the pay date May 5, 2016, reflects deductions
from the gross earnings of certain employees for 401(k) contributions.4 The second pay
period, for the pay date May 19, 2016, reflects refunds to employees of the previous pay 35
period’s 401(k) deductions because the old AristaCare 401(k) plan had been terminated and
had not been replaced by the Respondent with a new one. By noting these refunded
deductions in the Respondent’s payroll, the Region identified employees who participated in
AristaCare’s 401(k) plan and the percentage of gross earnings each employee contributed.
The payroll records also reflect whether and how much certain employees contributed to the 40
Respondent’s 401(k) plan once a replacement plan was obtained and deductions were
made from employees’ pay beginning January 26, 2017 (for the pay period January 8 to 21,
2017). (GC Exh. 5)
4 These deductions are identified in the payroll records (GC Exh. 5) by the code “S4.”
JD(NY)–02–20
3
The General Counsel contends that the Respondent must make contributions to the
401(k) plan on behalf of employees who satisfied one of the following criteria: (1) They
participated in AristaCare’s 401(k) plan prior to the sale and/or (2) they immediately began
contributing to the Respondent’s 401(k) plan when it became available in January 2017. 5
Thus, under the Region’s criteria, employees were not entitled to a monetary remedy if they
did not participate in the AristaCare plan and did not immediately participate in the
Respondent’s plan when it became available. If an employee contributed a different
percentage of gross earnings to the old and new 401(k) plans, the Region used the presale
percentage to calculate a remedy rather than the postsale percentage.10
The compliance specification identifies 10 employees who are allegedly entitled to
back contributions under the criteria described above.5 Among those ten, the following nine
employees qualified by virtue of their participation in AristaCare’s 401(k) plan: Maribel
Gonzalez, Faimy Louis Jean, Guernelle Mondesire, Margaret Ogondare, Neha Patel, Nidhi 15
Patel, Gilma Rivera, Alucienne Sainte, and Lamercie St. Juste. Six of these employees
also qualified because they immediately participated in the Respondent’s plan when it
became available in January 2017. The three employees who participated in the AristaCare
plan but did not immediately participate in the Respondent’s plan when it became available
were Ogondare, Neha Patel, and Mondesire. Ogondare and Neha Patel began contributing 20
to the new 401(k) plan in July 2017 and April 2018, respectively, while Mondesire never
contributed to the Respondent’s plan.
Among the employees for whom a monetary remedy is sought, only Enid Rivera did
not participate in the old AristaCare 401(k) plan. Rivera qualified for a remedy under the 25
Region’s criteria because she immediately began contributing to the Respondent’s plan
when it became available in January 2017.
Among the employees who made contributions to both the old and new plans, the
following five employees contributed a greater percentage of gross pay to the old 30
AristaCare plan than the new Respondent plan:6
Last
Name
First
Name
% of Gross Pay Contribution
to AristaCare Plan
% of Gross Pay Contribution
to Respondent Plan
Gonzalez Maribel 4% 3%
Louis Jean Faimy 4% 3%
Rivera Gilma 5% 3%
Sainte Alucienne 5% 3%
5 The chart appended hereto as “Attachment B" includes the names of each employee, their
gross earnings for pay dates May 5, 2016 and January 26, 2017, the amount deducted from each
employee’s paycheck for 401(k) contributions on those pay dates, and the percentage of gross pay
each employee contributed.
6 The Region calculated the presale contributions of Gonzalez, Louis Jean, and Gilma Rivera as
3 percent, 3 percent, and 2 percent of gross earnings, respectively. However, for Gonzalez, Louis
Jean, and Gilma Rivera, my calculations indicate presale contribution rates of 4 percent, 4 percent,
and 5 percent, respectively. (See Attachments A and B.)
JD(NY)–02–20
4
St. Juste Lamercie 10% 5%
For all the employees who allegedly qualify for a monetary remedy, the General
Counsel seeks compensation for the Respondent’s matching contributions as well as any
contributions the employees would be expected to have made on their own behalf during
the relevant period. The General Counsel also seeks compensation for growth of such 5
funds at an appreciation rate pegged to the S&P 500 Index and calculated on a
compounded quarterly basis. Thus, for each employee, by quarter on a compounded basis,
the compliance calculation took the total contribution percentage (i.e., percentage of
employee contributions to the AristaCare plan + percentage of employer matching
contributions), multiplied it by the employee’s gross quarterly earnings, and added10
appreciation based on quarterly S&P 500 growth as reflected in the Vanguard 500 fund
return rates. The Respondent has not offered an alternative calculation of its liability.
Analysis
15
The General Counsel bears the burden of establishing a monetary remedy, while the
Respondent may establish affirmative defenses to reduce its liability. International
Brotherhood of Teamsters Local 25, 366 NLRB No. 99 (2018) citing Millennium
Maintenance & Electrical Contracting, 344 NLRB 516, 517 (2005) and Chem Fab Corp.,
275 NLRB 21, 21 (1985), enfd. mem. 774 F.2d 1169 (8th Cir. 1985). To meet her initial 20
burden, “the General Counsel need show only that the gross backpay amounts contained in
the compliance specification were reasonable and not an arbitrary approximation.” Id. citing
Performance Friction Corp., 335 NLRB 1117 (2001) and Mastell Trailer Corp., 273 NLRB
1190, 1190 (1984). Further, “when uncertainty arises concerning the appropriate amount of
make-whole relief, the uncertainty is normally, and appropriately, resolved in favor of the 25
injured party and against the respondent, as the wrongdoer.” Lou’s Transport, Inc., 366
NLRB No. 140 slip op. at p. 7 (July 24, 2018); Webco Industries, Inc., 340 NLRB 10, 11
(2003); Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980), enfd. sub nom. Angle v.
NLRB, 683 F.2d 1296 (10th Cir. 1982).
30
The Respondent contends that it cannot be contractually required to match
employee contributions absent evidence that employees made or attempted to make such
contributions (or set aside equivalent savings). According to the Respondent, the Region’s
calculation is unduly speculative and based on hypotheticals. The Respondent cites federal
court cases for the proposition that “a contract is not to be written by the Court, even where 35
the Court may think the outcome is inequitable.” (Resp. Brief p. 7-8.) However, this is not
an action for breach of contract. It is a compliance proceeding based upon a statutory
finding that the Respondent unlawfully changed unit employees’ terms and conditions of
employment, and it is well settled that the Board has broad discretion to fashion appropriate
remedies. See Spectrum Juvenile Justice Services, 368 NLRB No. 102 (2019). The 40
Region’s compliance methodology does not seek to rewrite the collective-bargaining
agreement, but to interpret its terms under the particular circumstances of this case in
crafting a reasonable remedy. Recently, the Board adopted a judge’s compliance finding
that a discriminatee was entitled to 401(k) contributions upon an inference that the
discriminatee would have contributed to the fund during the backpay period because he did 45
so when he was employed by the Respondent and with an interim employer. Lou’s
Transport, Inc., 366 NLRB No. 140 slip op. at p. 7 (2018). See also Webco Industries, Inc.,
340 NLRB 10, 11 (2003).
JD(NY)–02–20
5
In rejecting the Respondent’s defense, I note that employees were never
responsible for submitting contributions to a 401(k) plan or an equivalent savings vehicle as
such funds were automatically deducted from employee paychecks and submitted to the
plan by AristaCare. Employees were not required to start doing so because the 5
Respondent failed in its obligation to continue deducting contributions once it purchased the
facility.
Lastly, it is the Respondent that relies on excessive speculation and hypotheticals.
In Lou’s Transport, Inc., 366 NLRB No. 140 slip op. at p. 7 (2018), a compliance 10
discriminatee was not denied reinstatement and his backpay was not tolled even though he
stated in the underlying ULP case that he did not want to go back to work for the
respondent. The discriminatee was entitled to a full remedy because his testimony in this
regard was not offered in response to a valid offer of reinstatement. Similarly here, the
Respondent’s employees did not have access to a 401(k) plan during the backpay period 15
and it is irrelevant, as hypothetical, what they did or did not do in the absence of such a
plan. Rather, as in Lou’s Transport, the better method of determining whether employees
would have contributed to a 401(k) plan during the relevant backpay period is by looking at
whether and to what extent they participated when such plans were actually available.
20
Matching Funds
Of the 10 employees named in the compliance specification, I find that the following
six are entitled to employer matching contributions in the amount of 1.5 percent of gross
earnings because they contributed at least 3 percent of gross earnings to 401(k) plans 25
when those plans were available before and after the sale of the facility: Gonzalez, Louis
Jean, Nidhi Patel, Gilma Rivera, Sainte, and St. Juste. Having participated in the AristaCare
401(k) plan through April 2016 and the Respondent’s 401(k) plan beginning January 2017,
there is no reason to believe that these employees would not have done the same during
the interim backpay period. Further, it is reasonable to infer that the employees would have 30
continued to contribute at least 3 percent of gross earnings during the backpay period in
order to maximize employer matching contributions (1.5 percent) under Article 31.1 of the
Union’s collective-bargaining agreement with Aristacare, as assumed by the Respondent in
the February 11, 2016 status quo agreement. See Lou’s Transport, Inc., 366 NLRB No.
140 (2018).35
I also find that the following three employees who contributed over 3 percent of
gross earnings to the AristaCare plan before the sale are entitled to employer matching
contributions of 1.5 percent of gross earnings even though they did not immediately
contribute to the Respondent’s plan when it became available in January 2017 (or at all): 40
Mondesire, Ogondare, and Neha Patel. It is reasonable to infer that these employees
would have continued to contribute to the Respondent’s plan in April 2016 if such
contributions continued to be deducted from their paychecks. It is not overly surprising that
certain employees may have grown accustomed to collecting a higher net wage and,
therefore, did not immediately (or ever) elect to resume making 401(k) contributions when 45
offered the opportunity to do so after an 8-month hiatus. Such an occurrence does not
logically negate the inference upon which the remedy is based.
JD(NY)–02–20
6
For much the same reason, I find that the backpay computation is reasonable to the
extent it relies on the percentage of gross pay employees contributed to AristaCare’s 401(k)
plan as opposed to the gross pay percentage of employee contributions to the
Respondent’s plan (if different). If the Respondent had seamlessly obtained a 401(k) plan
and continued deducting the contribution percentage each employee elected for the5
predecessor plan, there is little reason to believe employees would have suddenly reduced
that election. Conversely, employees might have decided to reduce their contribution after
a hiatus in which they became accustomed to a higher net wage. As noted above, such an
occurrence does not logically negate the inference upon which the remedy is based.
10
Lastly, I find that Rivera is entitled to employer matching contributions of 1.5 percent
of gross earnings even though she did not participate in AristaCare’s 401(k) plan. Rivera
contributed 3 percent of gross pay to the Respondent’s plan when it became available in
January 2017 and it is reasonable to conclude that she would have made the same election
if she was presented with the option to do so in April 2016.15
While evidence that certain employees did not make contributions in April 2016 or
January 2017 (or did not contribute the same percentage of gross earnings) may add a
degree of ambiguity as to whether and how much those employees would have contributed
to their 401(k) plans during the backpay period, such uncertainties are resolved against the 20
wrongdoer in a compliance proceeding. Lou’s Transport, Inc., 366 NLRB No. 140 slip op. at
p. 7 (2018); Webco Industries, Inc., 340 NLRB 10, 11 (2003); Kansas Refined Helium Co.,
252 NLRB 1156, 1157 (1980), enfd. sub nom. Angle v. NLRB, 683 F.2d 1296 (10th Cir.
1982).
25
Employee Contributions
The General Counsel contends that “the Board has consistently ordered employers
that have caused employees to lose the opportunity to contribute to a 401(k) plan to pay
both the employees contributions . . ..” (GC Brief p. 2.) The Respondent contends that 30
such an order would be punitive and an employee windfall beyond the standard make whole
remedy.
In support of its position, the General Counsel cites Republic Windows & Doors,
LLC, 356 NLRB 1449, 1450, 1452 & fn. 6 (2011), Kane Steel Co., 355 NLRB No. 49 at 3-4 35
& fn. 3 (2010), and Webco Industries, 340 NLRB 10, 12-13; & Appendix, 16-17 (2003). The
cited footnotes in Republic Windows & Doors and Kane Steel are not applicable to the
current situation. In Republic Windows & Doors, the Board stated in footnote 6:
To the extent that an employee has made personal contributions to his or her40
401(k) account that have been accepted by the plan in lieu of the
Respondent’s delinquent contributions during the period of the delinquency,
the Respondent will reimburse the employee, but the amount of such
reimbursement will constitute a setoff to the amount that the Respondent
otherwise owes the fund. 45
This footnote, and others like it, do not stand for the asserted proposition that a
Respondent must pay employees’ share of contributions in addition to matching funds. The
record contains no evidence that employees made personal contributions to any 401(k) plan
JD(NY)–02–20
7
and the compliance calculation does not use employee contributions as a setoff to other
amounts owed. In Lou’s Transport, Inc., 366 NLRB No. 140 (2018), the compliance
specification provided for payment by the employer of an employee’s 401(k) contributions,
but those contributions were deducted from total gross backpay. The judge and the Board
adopted this calculation.75
However, in Republic Windows & Doors, where the employer violated Section
8(a)(5) and (1) of the Act by failing “to remit unit employees’ contributions to their 401(k)
retirement accounts and failing to make matching contributions on those accounts[,]” the
Board “order[ed] the Respondent to make all such contributions . . ..” 356 NLRB at 1452.10
Likewise, in Webco Industries, 340 NLRB 10 (2003), the judge and Board adopted a
Regional compliance calculation which included the award of employee contributions in the
amount of 12 percent of gross earnings, which the discriminatee made before his unlawful
discharge. These decisions admittedly offer no explanation for orders that appear to involve
a windfall beyond the standard make whole remedy. However, it could be argued that, if15
employees spent all the money they were paid, they would not be in a position to take
advantage of 401(k) tax benefits by making catch-up contributions. Indeed, the process of
deducting contributions from an employee’s paycheck before that money can be spent is a
different method of forced savings than having an employee go out of pocket to make
contributions from personal savings. In any event, whatever the rationale, the Board has 20
ordered similarly situated employers to pay the employees’ share of 401(k) contributions
and I will do the same.
Method of Calculating Growth of 401(k) Contributions
25
The Region determined the growth of back contributions by pegging them to the
S&P 500 index, as reflected by return rates of the Vanguard 500 fund, and compounding
the calculation on a quarterly basis. Recently in Lou’s Transport, Inc., 366 NLRB No. 140,
slip op. at p. 8 (2018), the Vanguard 500 return rates were used for such a purpose. The
Respondent did not contest this method of calculation and did not provide an alternate30
calculation of its own. Accordingly, I find the compliance calculation to be reasonable in this
respect.
SUPPLEMENTAL ORDER
35
It is hereby ORDERED that the Respondent, Alameda Center for Rehabilitation and
Healthcare Inc., its officers, agents, successors, and assigns, shall make Maribel Gonzalez,
Faimy Louis Jean, Guernelle Mondesire, Margaret Ogondare, Neha Patel, Nidhi Patel, Enid
Rivera, Gilma Rivera, Alucienne Sainte, and Lamercie St. Juste whole by submitting to the
401(k) plans of those employees the employee contributions and matching contributions40
which should have been made on pay dates between May 5, 2016 and January 12, 2017,
using the method of the compliance specification. However, since the compliance
specification appears to include inadvertent miscalculations of the percentage of gross
7 This calculation was not contested by the Respondent because, presumably, it resulted in
a reduction of the Respondent’s liability.
JD(NY)–02–20
8
earnings that Maribel Gonzalez, Faimy Louis Jean, and Gilma Rivera contributed to the
AristaCare 401(k) plan, the calculation for those employees should be redone.
Dated, Washington, D.C. March 20, 20205
Benjamin W. Green
Administrative Law Judge10
JD(NY)–02–20
Perth Amboy, NJ
ATTACHMENT A
A B C D E F G H I J K L M
Name
% of gross
pay
deducted
for 401(k)
employee
contribution
% Employer
Match
Owed
% Total
deduction
and ER
match
owed
401(k)
owed for
2nd QTR
2016
Lost
Investment
for 2nd QTR
2016
401(k)
owed for
3rd QTR
2016
Lost
Investment
for 3rd QTR
401(k)
owed for
4th QTR
2016
Lost
Investment
for 4th QTR
2016
401(k)
owed for
1st QTR
2017
Lost
Investment
for 1st QTR
2017 TOTAL
Gonzalez, Maribel 3% 1.50% 4.5% $392.00 $7.45 $486.00 $29.31 $603.00 $49.33 $98.00 $92.08 $1,757.16
Luis jean, Faimy 3% 1.50% 4.5% $362.00 $6.88 $478.00 $28.03 $510.00 $45.01 $126.00 $86.04 $1,641.96
Mondesir, Guernelle 5% 1.50% 6.5% $716.00 $13.60 $923.00 $54.70 $1,071.00 $90.29 $207.00 $170.08 $3,245.68
Ogundare, Margaret 10% 1.50% 11.5% $803.00 $15.26 $809.00 $53.86 $1,359.00 $98.80 $335.00 $192.11 $3,666.03
Patel, Neha 5% 1.50% 6.5% $675.00 $12.83 $964.00 $54.68 $1,265.00 $96.57 $197.00 $180.56 $3,445.63
Patel, Nidhi 5% 1.50% 5.5% $739.00 $14.04 $1,010.00 $58.36 $1,401.00 $104.73 $187.00 $194.33 $3,708.46
Rivera, Enid 3% 1.50% 4.5% $401.00 $7.62 $500.00 $30.08 $560.00 $48.71 $126.00 $92.54 $1,765.94
River, Gilma 2% 1.00% 3.0% $173.00 $3.29 $248.00 $14.04 $404.00 $27.38 $89.00 $53.02 $1,011.72
Sainte, Alucienne 5% 1.50% 6.5% $744.00 $14.14 $1,013.00 $58.62 $1,260.00 $100.42 $228.00 $189.03 $3,607.20
St. Just, Lamercie 10% 1.50% 11.5% $1,106.00 $21.01 $1,588.00 $89.87 $1,687.00 $145.99 $329.00 $274.67 $5,241.53
TOTALS $6,111.00 $116.11 $8,019.00 $471.55 $10,120.00 $807.23 $1,922.00 $1,524.46 $29,091.31
NOTES
S&P Quarterly Returns for Relevant Period
2nd QTR 2016 1.90%
3rd QTR 2016 3.31%
4th QTR 2016 3.25%
1st QTR 2017 5.53%
JD(NY)–02–20
Perth Amboy, NJ
ATTACMENT B
AristaCare 401(k) Plan Respondent 401(k) Plan
Last Name First Name Pay Date GC 5 p.
Gross
Pay Cont.
Cont.
% Pay Date GC 5 p.
Gross
Pay Cont. Cont. %
Gonzalez Maribel 5/5/2016 62 $947.45 $37.90 4% 1/26/2017 65 $2,121.15 $63.63 3%
Louis Jean Faimy 5/5/2016 128 $1,276.60 $51.06 4% 1/26/2017 131 $1,906.84 $57.21 3%
Mondesire Guernelle 5/5/2016 143 $1,659.97 $83.00 5% 1/26/2017 147 N/A
Ogondare* Margaret 5/5/2016 154 $1,284.31 $128.43 10% 1/26/2017 157 $1,928.32 $192.83 10%
Patel** Neha 5/5/2016 185 $1,559.36 $77.97 5% 1/26/2017 193 $2,396.42 $119.82 5%
Patel Nidhi 5/5/2016 195 $1,552.98 $77.65 5% 1/26/2017 198 $2,744.09 $137.20 5%
Rivera Enid 5/5/2016 225 N/A 1/26/2017 228 $1,779.02 $53.37 3%
Rivera Gilma 5/5/2016 235 $1,327.27 $66.36 5% 1/26/2017 238 $1,965.11 $58.95 3%
Sainte Alucienne 5/5/2016 254 $1,650.63 $82.53 5% 1/26/2017 257 $2,892.48 $86.77 3%
St. Juste Lamercie 5/5/2016 280 $1,584.10 $158.40 10% 1/26/2017 283 $2,335.08 $116.75 5%
*Ogandare, Margaret – Began participating in the Respondent’s 401(k) plan on pay date July 27, 2017.
**Patel, Neha – Began participating in the Respondent’s 401(k) plan on pay date April 19, 2017.