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Combination Bonus and Deferral Plan Subject to ERISA

This article examines the case of Tolbert v. RBC Capital Markets Corp. in which the Fifth Circuit Court of Appeals held that a deferred compensation plan through which key employees received annual bonuses and were able to defer both bonuses and other income was an “employee pension benefit plan” governed by the Employee Retirement Income Security Act of 1974 (ERISA). Although the primary purpose of the plan was to provide bonuses rather than retirement income, the court concluded that the plan was governed by ERISA because it provided for the “systematic deferral” of income “extending to the termination of covered employment or beyond.” Because this plan was limited to a select group of management or highly compensated employees, it was likely eligible for the ERISA “top hat” exemption and the case was remanded for consideration of that issue. However, this case emphasizes the importance of ERISA compliance even by plans which are primarily bonus plans if they provide for the deferral of income for periods extending to termination or beyond.