SEC Staff Issues Additional Pay Versus Performance Compliance & Disclosure Interpretations

On September 27, 2023, the staff of the Securities and Exchange Commission’s (SEC’s) Division of Corporation Finance issued 10 new Compliance & Disclosure Interpretations (C&DIs) relating to the pay-versus-performance (PVP) disclosure rules adopted last year. This new set of C&DIs supplements the 15 C&DIs regarding the PVP disclosure rules issued by the staff on February 10, 2023, and provides answers to some of the questions that companies encountered in complying with the PVP disclosure rules for the first time during the 2023 proxy season. READ MORE

Corp Fin posts new CDIs regarding pay versus performance

Corp Fin has posted some new CDIs on pay versus performance. In August last year, the SEC finally adopted a new rule requiring disclosure of information reflecting the relationship between executive compensation actually paid by a company and the company’s financial performance—a new rule that had been 12 years in the making, mandated in 2010 by Dodd-Frank. (See this PubCo post.) The final amendments added new Item 402(v) of Reg S-K, which requires companies to describe the relationship between executive compensation actually paid and the financial performance of the company for the five most recently completed fiscal years (three for smaller reporting companies) in proxy or information statements in which executive compensation disclosure is required. Generally, for most companies, the new disclosures were first required for the 2023 proxy season. Apparently some issues cropped up, reflected in these new CDIs. READ MORE

The 2023 Say on Pay Season – Outcomes and Observations

Say on Pay (SOP) votes were mandated by the Dodd-Frank Act of 2010 as a mechanism to allow shareholders to voice their opinions about the level and structure of executive compensation as well as promote the engagement of companies and their shareholders regarding a key area of corporate governance. The general view was that shareholders would increasingly reject executive pay programs by voting against the SOP proposal in years of poor total shareholder return (TSR) performance unless executive pay was reduced. Our findings show that the 2022 and 2023 SOP seasons run counter to this premise for S&P 500 Index companies. SOP failures in 2022 hit a record high (n=22) when TSR performance was strong (1- and 3-year TSR of 27% and 24%, respectively), whereas SOP failures in 2023 unexpectedly decreased (n=11) when TSR performance declined (1- and 3-year TSR of -19% and +6%, respectively). READ MORE

Florida minimum wage raised to $12 an hour as part of 2020 constitutional amendment

Florida’s minimum wage rose by one dollar Saturday to $12/hour. The increase is the result of a constitutional amendment approved by voters in 2020 to gradually raise the Sunshine state’s minimum wage to $15/hour by September 30, 2026.

Florida’s minimum wage stood at $8.56/hour when voters approved the 2020 ballot measure to incrementally increase base pay, according to FloridaCommerce. As part of the approved amendment, the state’s minimum wage initially rose by $0.09 to $8.65 on January 1, 2021, and later to $10 on September 30 that same year. READ MORE

California law raises minimum wage for fast food workers

California is raising the minimum wage for fast food workers, marking a hard-won victory for those workers and union organizers.

Amid chants of “when we fight, we win” from fast food employees and Service Employees International Union members in Los Angeles, California, Governor Gavin Newsom on Thursday signed legislation that raises the minimum wage to $20 an hour for fast food workers, and creates a council that can approve further increases in the future. The state’s current minimum wage is $15.50 an hour and will increase to $16 an hour on January 1. READ MORE

DOL Seeks to Raise Salary for FLSA’s White Collar Exemption

Following in the footsteps of the Department of Labor (DOL) under the Obama Administration, the agency released a notice of proposed rulemaking (NPRM) that would raise the minimum salary to qualify for a white collar exemption under the Fair Labor Standards Act (FLSA).

In 2016, the DOL proposed an increase that would have more than doubled the salary threshold requirements, but a coalition of 21 states objected and filed suit, challenging the proposal. READ MORE

Executive Compensation Clawback Policies: Now Is the Time to Consider Insurance

As explained in a recent alert, now is the time for public companies to adopt compliant clawback policies. This is because the US Securities and Exchange Commission (SEC) recently approved final rules on June 9, 2023, that required national securities exchanges like the New York Stock Exchange (NYSE) and the Nasdaq to implement new listing standards requiring public companies to institute compliant incentive-based compensation clawback policies. The NYSE and Nasdaq rules require listed companies to adopt clawback policies by December 1, 2023, which policies must apply to incentive compensation awarded after October 2, 2023. As public companies prepare to adopt compliant policies before the December 1, 2023 deadline, they should not only consider the clawback policy itself, but also the overlap between that policy and any applicable directors and officers (D&O) liability insurance. Doing so is important to address the potential new exposures created by the new SEC rules. READ MORE

Market conditions fail to dent high CEO pay, ISS finds

Across the US, more than 70 percent of chief executives took home at least their target compensation in 2022 – a figure that is largely unchanged over a five-year research period from 2018 to 2022.

Median payouts for CEO annual incentives at S&P 500 firms in 2022 stood at $1.41 mn. Looking at CEO pay across the S&P 1500 between 2018 and 2022, researchers find that, despite significant market volatility during the study period, payout rates were consistently above the 50 percent to 60 percent range ‘considered best practice by consultants, academics and practitioners’. READ MORE

Pegging negotiations to executive compensation is working

In recent weeks, one of the top news stories has been the auto workers’ strike in the United States, not because of its consequences but because of the sheer audacity of the United Auto Workers’ (UAW) demands.

 Workers Ford, General Motors (GM), and Stellantis (formerly Chrysler) plants in the U.S., along with their union, are sticking to their guns. The demands, among other things such as job security against layoffs, the right to strike during the life of the contract to object to a plant being closed (a first in auto-worker contracts), and two years’ of salary and health benefits for laid off workers reportedly include a 40 per cent salary increases spread over the four years of the contract. READ MORE

Executive Compensation Reminders

Executive compensation arrangements provide a company with a highly flexible benefit to further attract and retain top talent.  Issues in design and administration of these plans include timing of taxation and whether the plans may be subject to ERISA filing requirements.  Below are a few reminders which may help lead to more predictability in operation of a deferred compensation arrangement and reporting requirements.  READ MORE

US employers plan more modest compensation increases in 2024

Today, Mercer, a global leader in redefining the world of work, reshaping retirement and investment outcomes, and unlocking real health and well-being, and a business of Marsh McLennan (NYSE: MMC), released the results of its August 2023 Mercer QuickPulse™ US Compensation Planning Survey. According to the survey, employers in the US plan to raise their compensation budgets by 3.5% for merit increases for 2024 and 3.9% for their total salary increase budgets for non-unionized employees. This compares to actual merit increases of 3.8% and 4.1% for total salary increase budgets for non-unionized employees in 2023.i

“While preliminary compensation budgets for 2024 are showing a slight decline, they remain well above pre-pandemic levels, reflecting the ongoing tightness of the labor market and low levels of unemployment. However, if the labor market continues to stabilize and inflation cools further as we move towards the end of the year, compensation pressures are likely to continue to decline. This could prompt further reductions in 2024 compensation increase budgets, as employers adjust their strategies to reflect the changing economic landscape,” said Lauren Mason, Senior Principal, Career, Mercer. READ MORE

Indeed says half of its US job postings now feature pay transparency

Half of U.S. job postings listed on Indeed in August included at least some employer-provided salary information, which is the highest percentage recorded on the site so far, according to a Sept. 14 report from Indeed’s Hiring Lab.

In New York, 61% of August job postings featured some type of pay transparency, nearly double the 31% from the year before. The percentage is expected to increase since new salary disclosure rules took effect on Sept. 17. READ MORE

As UAW, Detroit 3 fight over wages, here's a look at autoworker pay, CEO compensation

Wages have been a big point of contention in ongoing UAW talks, with the union initially seeking a 40% pay increase and the automakers offering about half that percentage over the life of the next contract in their most recent proposals.

The union has said the wage request is tied to the percentage increase in CEO compensation over the last four years. The union has also pointed to the big increase in inflation, saying autoworker wages haven’t come close to keeping pace. READ MORE

Smart Employees Use Their Vacation Time: Third Circuit Holds PTO Is Not Part Of Exempt Employees’ Salaries Under the FLSA

In a boon for employers with exempt employees, the Third Circuit held earlier this year as an issue of first impression that paid time off (PTO) is not part of an exempt employee’s salary under the federal Fair Labor Standards Act (FLSA). Thus, although PTO arguably has a monetary value, employers will not be liable under the FLSA for deducting from a salaried employee’s PTO time. READ MORE

6 In 10 US Workers Are Jealous Of UPS Employees' 6-Figure Salary Increase

Unionized delivery workers came to an agreement with UPS that resulted in raising annual pay for drivers’ that sits at around $170,000 within five years. Other workers across various industries have strong thoughts about this.

According to a new report from routing software company Circuit shows that nearly 6 in 10 Americans (57%) are envious of the UPS salary increase, with those in education (72%), manufacturing/engineering (67%), and professional services (61%) being the most envious. READ MORE