Sometimes you have to hope that sanity will prevail at IRS. If this is something other than a very small plan (e.g., at least 25 or more NHCEs with account balances, preferably some large ones), and if the person slipped through the cracks for 2 or 3 years or more and he/she never said anything, an employer could legitimately consider the approach of not correcting, with the expectation that the IRS would not disqualify the plan if the issue was spotted on an audit. The windfall to the employee of fixing via 50% QNECs plus earnings in this scenario is simply too much to stomach in some circles. As to Title I liability, I think there would be excellent defenses to any claim by the employee, at least enough to prevent a lawyer from taking the case on a contingency basis.