To ensure that your nonqualified deferred compensation remains exempt from the most burdensome provisions of ERISA (such as reporting, funding, testing, and certain fiduciary obligations) you must timely file a one-time statement with the Department of Labor. You must submit a Top Hat Plan Statement to the DOL, as described in the regulations, that includes the following:

  • Name and address,
  • Employer Identification Number,
  • Number of top-hat plans you maintain,
  • Number of participants in each plan; and
  • A declaration that you maintain the plan(s) primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees.

The Top Hat Plan Statement must be filed with the DOL within 120 days of the plan’s inception.

In 2014, the DOL published proposed regulations that would require your statement to be filed electronically. Although electronic filing may not yet be mandatory, you may find the e-filing system to be more convenient than regular mail. The e-filing system prompts you to provide all the required information, which makes it easy to comply with the regulations, and it provides you with evidence that your filing was timely submitted. The DOL published detailed instructions on how to complete your Top Hat Statement online and a link to its e-filing system.