As an employment law attorney, you spend your days helping your clients—whether employers or employees—navigate complex employment regulations and issues. At this point in your career, you've drafted so many offer letters, employment agreements, and separation agreements, that you could probably write one of each in your sleep. If you practice with a firm that counts at least one ERISA and executive compensation attorney among its ranks, you know that it's best practice to send each of these agreements that you draft to that attorney for a quick once-over for compliance with 409A before you send the final draft to the client. Or, if you are a solo practitioner or practice with a firm that does not have an ERISA and executive compensation attorney on staff, are you certain that the documents you're drafting for your clients are in compliance with 409A?

While seasoned employment attorneys are experienced in drafting various legal documents, navigating the specific requirements of Section 409A can be challenging and the consequences of noncompliance can be severe. This article provides a helpful refresher to ensure you're drafting your documents with the intricacies of 409A requirements in mind.