Keep Good Guys - Strong Incentives to Retain Key Employees at Little or No Cost to the Employer
Employers, imagine this: providing such strong incentives for key employees to stick with you, that they will find it hard to leave and go to work for your competitor. Then imagine that the cost of these incentives is next to nothing! It is possible to dangle a huge carrot
in front of any valued employee that you wish - without the need to do so for any other employee or group of employees - making him or her think twice before moving on. Key executive retention is one of the most important goals of any business.
A part of the overall category of Executive Benefit Plans, t
hese plans are referred to with such names as Salary Continuation Plans, "Golden Handcuffs", Supplemental Executive Retirement Plans (SERPs), Deferred Compensation Plans, forfeitable benefits, "Top Hat Plans", etc. The IRS calls them 409(a) plans, or 457(f) plans for non-profit organizations. They can be as simple as a written agreement between the employer and the employee, providing benefits at death, disability, or retirement, if the employee meets the conditions of tenure, performance milestones, etc. These are unsecured, conditional benefits from the company, and they don't have to involve anything more than a promise by the employer to pay certain amounts under certain conditions, without any formal requirement for the employer to set aside funds in advance to cover these potential expenses.
Most 409(a) and 457(f) SERP plans, in order for the employer to establish credibility and be taken seriously, do provide for informal funding throughout the plan years. The employee must believe that the company or organization will be around, and is setting aside the resources to ensure promises can be kept. Accounting or actuarial firms may act in an auditing capacity to evaluate funding rates, investment performance, and risk factors against potential benefits to be paid. For a small business, such services don't have to be expensive. One firm charges a $2,000 set-up fee and $1,000 per year for up to 4 employees.
Since employers informally fund 409(a) plans, and since such plans also tend to contain provisions for not only retirement, but also early death and / or disability of the executive, cash value life insurance is often the vehicle of choice. Indexed Universal Life Insurance (IUL) can address all three components of such plans. Most businesses keep a minimum of ready cash at all times, which can provide all or most of the funding. Properly-structured, and using the right product, the leverage capabilities of IUL may allow the employer to "have his cake and eat it too".
While there are some requirements by the IRS, they are nothing like those for 401(k), Simple IRA, SEPs, and other qualified plans.
Executives may not achieve income tax deferral unless their rights to benefits are not able to be transferred. They must also be subject to a substantial risk of forfeiture.
For a SERP, ERISA allows two exemptions - Top-Hat plans, and Excess Benefit Plans:
Top-hat plans that are not formally funded, and are designed to benefit a “select group of managers or highly-paid employees”, are exempt from most Title I ERISA requirements for non-qualified plans. Not being "formally funded" doesn't lessen the desirability of informally setting aside money in some way. The executive needs to believe that those benefits will be there some day! If properly designed, top-hat plans are also excluded from Parts 2, 3 and 4 of Title I of ERISA. The plan administrator can comply with Part I through a simplified reporting procedure. Employees eligible for top-hat plans are generally not more than 15% of the total workforce. In some instances, courts have held that an executive earning more than $115,000 may still be included in a top-hat group even if his presence swells the ranks to exceed 15%. In addition to being highly compensated, they have been construed to possess at least some role in the decision-making of their company.
An Excess Benefit Plan is also known as a Voluntary Salary Reduction Plan or Non-Qualified Deferred Compensation Plan. It is viewed by the executive as having informal investment accounts that the executive may direct the company as to how these accounts are invested. The amount and timing of these investments coincide with the amount and timing of voluntary reduction in pay that the executive would otherwise receive as taxable income. Such arrangements help to provide retirement benefits not available to top executives due to contribution limits for the company's qualified plan(s). Thanks to ERISA §4(b)(5), such informally funded Excess Benefit Plans are free from all the requirements of ERISA Title I. ERISA §3(36) says that an Excess Benefit Plan is: “A plan maintained by an employer solely for the purpose of providing benefits for certain employees in excess of the limitations on contributions and benefits imposed by I.R.C. §415….”
In any event, when one of these plans is deemed exempt from ERISA Title I, adoption and ongoing reporting requirements are minimal. Conditions that may be imposed by the employer for the executive to receive benefits are likewise quite flexible. (Back to IUL Table of Contents)