Excerpt: [M]any highly compensated executives are less than thrilled when they have to take back money they have already contributed to their company's 401(k) retirement plan because it fails to meet non-discrimination rules. Failure typically occurs when the gap between what highly compensated employees defer on average and what non-highly compensated employees defer on average exceeds IRS guidelines. Unfortunately, this is happening with growing frequency. The 401(k) Profit Sharing Council of America (PSCA) reported that 58% of all non-safe harbor plans failed their non-discrimination test in 2008, an increase of 20% from the previous year.