Page:United States Statutes at Large Volume 124.djvu/901

 124 STAT. 875 PUBLIC LAW 111–148—MAR. 23, 2010 ‘‘(ii) an amount which is not less than the lesser of— ‘‘(I) 6 percent of the employee’s compensation for the plan year, or ‘‘(II) twice the amount of the salary reduction contributions of each qualified employee. ‘‘(B) MATCHING CONTRIBUTIONS ON BEHALF OF HIGHLY COMPENSATED AND KEY EMPLOYEES.—The requirements of subparagraph (A)(ii) shall not be treated as met if, under the plan, the rate of contributions with respect to any salary reduction contribution of a highly compensated or key employee at any rate of contribution is greater than that with respect to an employee who is not a highly compensated or key employee. ‘‘(C) ADDITIONAL CONTRIBUTIONS.—Subject to subpara- graph (B), nothing in this paragraph shall be treated as prohibiting an employer from making contributions to pro- vide qualified benefits under the plan in addition to con- tributions required under subparagraph (A). ‘‘(D) DEFINITIONS.—For purposes of this paragraph— ‘‘(i) SALARY REDUCTION CONTRIBUTION.—The term ‘salary reduction contribution’ means, with respect to a cafeteria plan, any amount which is contributed to the plan at the election of the employee and which is not includible in gross income by reason of this section. ‘‘(ii) QUALIFIED EMPLOYEE.—The term ‘qualified employee’ means, with respect to a cafeteria plan, any employee who is not a highly compensated or key employee and who is eligible to participate in the plan. ‘‘(iii) HIGHLY COMPENSATED EMPLOYEE.—The term ‘highly compensated employee’ has the meaning given such term by section 414(q). ‘‘(iv) KEY EMPLOYEE.—The term ‘key employee’ has the meaning given such term by section 416(i). ‘‘(4) MINIMUM ELIGIBILITY AND PARTICIPATION REQUIRE- MENTS.— ‘‘(A) IN GENERAL.—The requirements of this paragraph shall be treated as met with respect to any year if, under the plan— ‘‘(i) all employees who had at least 1,000 hours of service for the preceding plan year are eligible to participate, and ‘‘(ii) each employee eligible to participate in the plan may, subject to terms and conditions applicable to all participants, elect any benefit available under the plan. ‘‘(B) CERTAIN EMPLOYEES MAY BE EXCLUDED.—For pur- poses of subparagraph (A)(i), an employer may elect to exclude under the plan employees— ‘‘(i) who have not attained the age of 21 before the close of a plan year, ‘‘(ii) who have less than 1 year of service with the employer as of any day during the plan year, ‘‘(iii) who are covered under an agreement which the Secretary of Labor finds to be a collective bar- gaining agreement if there is evidence that the benefits