A Third Circuit decision, Sikora v. UPMC, 876 F.3d 110 (3d Cir. 2017), deepens a circuit split over whether a participant’s bargaining power is relevant to determining whether a plan qualifies for “top hat” status under ERISA.

Plans that qualify for “top hat” status are exempt from ERISA’s eligibility, vesting, funding, and fiduciary requirements. To qualify, a plan must be unfunded and must limit coverage to a “select group of management or highly compensated employees.”  In Sikora, a former employee sued to recover a pension benefit that he forfeited upon termination of his employment on the ground that the forfeiture violated ERISA’s vesting requirements.  To make his case, he argued that the plan did not qualify for “top hat” status — and therefore was not exempt from ERISA’s vesting requirements — because the participants in the plan did not have bargaining power with respect to the plan.  The Third Circuit held that bargaining power over plan design and operation is not relevant to determining whether a plan is limited to a “select group” of employees.  Instead, the Court ruled that the inquiry should focus on the number of participants who are eligible (it should be a small portion of the employee population) and participants’ compensation levels (to satisfy the “highly compensated” requirement). 

In this case, the Third Circuit evaluated the demographics and found that the plan qualified as a “top hat” plan. As a result, ERISA’s vesting requirements did not apply.

The Third Circuit’s test aligns with the First Circuit. In contrast, the Second, Sixth, and Ninth Circuits have interpreted a Department of Labor Opinion Letter from 1990 to mean that courts should inquire as to a plan participant’s bargaining power to determine whether s/he is a member of a “select group of management or highly compensated employees.” The Third Circuit disagreed with that interpretation, stating that the Opinion Letter merely “observ[ed] that participants in top-hat plans were deemed by Congress to possess bargaining power ‘by virtue of their position or compensation level.’”  According to the Third Circuit, “engraft[ing] a bargaining power requirement onto the elements of a top-hat plan” would be contrary to the plain text of the statute and the Opinion Letter.

The Sikora decision serves as a fresh reminder that there is no single test for determining top hat status.  The stakes are high: if an unfunded plan fails to qualify as “top hat,” the sponsor can be forced to pay benefits far in excess of what was anticipated; the sponsor can become subject to funding and fiduciary obligations; and plan participants can be exposed to significant (and unexpected) adverse tax consequences.  As such, it is worthwhile to review eligibility for unfunded plans and balance the desire to provide generous benefits against the risk of becoming subject to ERISA’s eligibility, funding, vesting, and fiduciary rules.

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Photo of Neil V. Shah Neil V. Shah

Neil V. Shah is a member of the Employee Benefits & Executive Compensation Group, where he focuses on ERISA litigation.

He is the lead attorney representing the firm’s Taft-Hartley plan clients in withdrawal liability and delinquent contributions matters.  As part of his practice…

Neil V. Shah is a member of the Employee Benefits & Executive Compensation Group, where he focuses on ERISA litigation.

He is the lead attorney representing the firm’s Taft-Hartley plan clients in withdrawal liability and delinquent contributions matters.  As part of his practice, Neil pursues employers, their owners and officers, and affiliated companies to collect the amounts owed to these plans using a variety of complex legal theories, and has secured several precedential opinions and multi-million-dollar judgments in their favor.  Neil also defends these plans in arbitrations challenging the methods and assumptions used to calculate withdrawal liability, which has yielded a number of notable arbitration decisions and court opinions.  Owing to his experience in this area, Neil is a co-editor of the withdrawal liability chapter of the premier employee benefits treatise, Employee Benefits Law, published by Bloomberg, and regularly presents on the topic before practitioners and consultants that work in the area, such as at meetings of the Conference of Consulting Actuaries and the Employee Benefits Section of ABA’s Section of Labor & Employment Law.

In addition to his Taft-Hartley plan experience, Neil has represented several plan sponsors and fiduciaries in ERISA class actions alleging that the plan’s investments or other practices are imprudent, such as excessive fee and stock drop cases.

Prior to joining Proskauer, Neil was an associate at a large regional firm, where he litigated individual and class actions involving challenges to insurer claims adjudication procedures under ERISA, fraud recoveries against healthcare providers, and claims for benefits.

Neil has authored several articles, including those published in the New Jersey Law Journal and Bloomberg National Affairs.  He is also a frequent contributor to Proskauer’s Employee Benefits & Executive Compensation Blog.