Avoiding Nonqualified Plan Traps: Key Considerations for ERISA Counsel and Employers

Correcting 409A and 457(f) Errors, Proposed Income Inclusion Regulations, Group Carve-Out Plans, Split-Dollar Life Insurance Plans

Recording of a 90-minute premium CLE webinar with Q&A

Conducted on Wednesday, February 26, 2020

Recorded event now available

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Program Materials

This CLE webinar will guide benefits counsel and employers on critical challenges in the design and implementation of nonqualified plans. The panel will discuss the application of Section 409A rules and correcting Section 457(f) errors, the implications of proposed "income inclusion" regulations, issues stemming from group carve-out plans and split-dollar insurance plans, and offer methods to ensure the development of an effective strategy for key employees.


A nonqualified plan is a tax-deferred, employer-sponsored retirement plan used for executives and key employees. These plans are not subject to the full gambit of rules under ERISA as qualified plans but have a unique mix of rules, regulations, and potential drawbacks to navigate.

Bonus plans, group carve-out plans, split-dollar insurance plans, and nonqualified deferred compensation plans (NQDCP) are ripe with potential pitfalls. One of the main issues that arise in disputes relating to these types of plans is whether or not the plan is subject to ERISA. To ensure that a nonqualified plan is exempt from ERISA, benefits counsel and employers must carefully consider a variety of critical items in drafting or amending plans and other agreements. In either case, employers must ensure that they follow ERISA claims procedures to minimize penalties and liability.

Section 409A applies to most NQDCPs. Distinguishing what is and what is not deferred compensation subject to Section 409A and documenting compliance is critical in the design and implementation of nonqualified deferred compensation plans. Furthermore, navigating procedures in correcting errors for plans under Section 457(f) is essential to avoid unintended liability.

Listen as our panel discusses the application of Section 409A rules, correcting Section 457(f) errors, the implications of proposed "income inclusion" regulations, group carve-outs, split-dollar insurance, and other essential matters.



  1. Pros and cons of nonqualified plans
    1. Legal and regulatory framework
    2. Administrative challenges
  2. Section 409A and correcting Section 457(f) errors
  3. Group carveout plans
  4. Split-dollar insurance plans
  5. Best practices for effective nonqualified plan design and implementation


The panel will discuss these critical issues and more:

  • What are the legal and administrative challenges of nonqualified plans?
  • What are the potential pitfalls of Section 409A?
  • What are the available methods in correcting Section 457(f) errors?
  • What are group carve-out and split-dollar life insurance plans, and how can they be used as incentives for key employees?


Bernstein, Susan
Susan E. Bernstein

Special Counsel
Schulte Roth & Zabel

Ms. Bernstein is special counsel in the New York office of Schulte Roth & Zabel LLP, where she has been advising...  |  Read More

Griffin, Page
Page W. Griffin

Skadden Arps Slate Meagher & Flom

Mr. Griffin practices in the executive compensation and benefits area.

 |  Read More
Liazos, Andrew
Andrew C. Liazos

McDermott Will & Emery

Mr. Liazos heads the firm's Executive Compensation Group and regularly represents Fortune 500 companies, public...  |  Read More

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