NQDCP - Plan Documents?

[Guest Mariko]

Is it legally necessary to have a Plan Document in place for NQDCP Plans?

[jpod]

It depends what you mean by "necessary." If an employer intends to establish a NQDCP and wants to ensure, to the extent possible, that the obligations it assumes in connection with the plan are only those which it intends to assume, then there sure better be a written plan document (although technically it may not be "necessary").

Another way of looking at this, from a design perspective, is that if the plan is intended to be a "top hat" plan exempt from the ERISA reporting and disclosure, minimum standards and fiduciary responsibility requirements, which is almost always the case, it may be difficult down the road to defend the plan's top hat status without a written plan document that has all the top hat bells and whistles.

If the plan is subject to ERISA but is not intended to be a top hat plan (which is extremely rare for a NQDCP), a written governing instrument is required per Section 402 of ERISA.