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Pay Governance LLC is an independent firm that serves as a trusted advisor on executive compensation matters to board and compensation committees. Our work helps to ensure that our clients' executive rewards programs are strongly aligned with performance and supportive of appropriate corporate governance practices. We work with nearly 400 companies annually, are a team of nearly 60 professionals in 13 U.S. locations with affiliates in Europe and Asia with experience in a wide array of industries, company life cycles and special situations.

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Current Issues in Executive Compensation

Pay Governance understands that times remain uncertain. Our domain expertise remains executive compensation consulting. Therefore, each week we will continue to provide you with a short newsletter to keep you abreast of developments in the executive remuneration world.

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Featured Viewpoints

Chairman of the SEC Shares Insights into the SEC’s Upcoming Agenda

On June 23, 2021, Chairman Gary Gensler of the SEC gave a formal speech in which he discussed three key areas of the reform agenda at the SEC. [i] In this speech, Chairman Gensler offered his views of the areas in which the SEC will focus over the upcoming 12 months as well as longer term issues the SEC will likely address. Chairman Gensler is newly appointed by the Biden administration and has shown that his agenda is ambitious. The purpose of this Viewpoint will be solely informative and a recast of Chairman Gensler’s comments.

Three Areas of SEC Focus

  1. Public Disclosure
  • There will be mandatory disclosures of climate risk and human capital
  • SEC staff will focus on recommendations around governance, strategy, and risk management related to climate risk
  • SEC staff will also propose recommendations on improved human capital disclosure and could include required disclosures on metrics such as workforce turnover, skills and development training, compensation and benefits, workforce demographics including diversity, and health and safety
  1. Market Structure
  • Staff have been requested to determine whether greater transparency and resiliency can be brought to U.S. equities and Treasury markets in light of new business models and technologies
  • The SEC desires to promote more efficient markets
  1. Transparency
  • SEC staff have been requested to update rules regarding transparency in the marketplace, including updates to rules surrounding beneficial ownership, equity-based swaps, and short selling
  • SEC staff have also been asked to consider new rules enhancing transparency around companies buying back their own stock

General questions about this Viewpoint can be directed to John Ellerman at john.ellerman@paygovernance.com.

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[i] Gary Gensler. Prepared remarks at London City Week. June 23, 2021. https://www.sec.gov/news/speech/gensler-speech-london-city-week-062321.

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Featured Viewpoint

Considering a Culturally Congruent EESG and DEI Component in Incentive Plans

During a recent compensation committee meeting, the CEO expressed some level of frustration with the public discourse on including EESG (Employee, Environment, Social, and Governance) goals — specifically, DEI (Diversity, Equity, and Inclusion) — into executive incentive plans. “Our culture is all about equity, diversity, and inclusion,” she exclaimed. “Why should we be bonusing our culture?”

The impetus for the CEO’s cultural pushback was a compensation committee member’s suggestion that next year’s annual incentive plan include a 10-15% weighted factor with threshold, target, and maximum goals tied to the number of underrepresented employees in management and executive groupings by year end. The compensation committee member had heard that “everyone” was adding an EESG or DEI bonus factor to their incentive plans, so their company needed to do so, too.

Now, it wasn’t that the company hadn’t tracked diversity progress: it had for the past five years. It wasn’t that the succession planning process hadn’t been geared towards providing women and employees of color opportunities for mentorship and new development assignments: it had been doing so for a decade and was proud of their track record in developing and promoting diverse talent at all levels of the organization. And it wasn’t for wont of public recognition about the company being an employer of choice: a number of “Top 50…” and “100 Best…” lists named the company. All of this was accomplished, the CEO reminded the compensation committee, without taking away any of the focus on delivering financial results in the annual incentive plan because EESG and DEI was, and is, so much a part of the company’s culture.

There’s no question one of the today’s biggest compensation committee discussion topics is if and how to incorporate EESG and DEI goals into annual or long-term incentive plans. Companies that have no such considerations in their FY2021 incentive plans are deciding if and how to best weave these metrics in with financial and other strategy goals for FY2022. Companies that consider EESG and DEI in their individual performance assessments are questioning whether such goals should move in FY2022 to a scorecard that can be presented to shareholders in their Compensation Disclosure and Analysis (CD&A) report. And companies with scorecards are considering whether internal systems can sufficiently support the goal setting and evaluation processes for EESG and DEI goals with the same rigor and robustness as how revenue, earnings, and free cash flow goals are established and evaluated.

A veritable cottage industry of consulting advice has sprung up to help companies and compensation committees consider if and how EESG and DEI are best incorporated into incentive plans. There are multiple studies that count percentages of companies in industry groups, indices, or geographies that already include these non-financial measures. Many authors weigh the pros and cons of adding EESG and DEI into annual (currently most common) or long-term (far less common) incentive plans. And others describe the pitfalls of treating EESG and DEI as the “flavor of the month” by rushing to add these measures without adequate consideration of organizational readiness and communications necessary to support any incentive plan metric. All of these perspectives should be considered regardless of the stage in which a company is considering EESG and DEI in reward systems. As a recap of the questions to be asked…

  1. Is EESG/DEI a strategic pillar?
  2. Have specific EESG/DEI metrics been in place for a while?
  3. Can actionable goals be set and measured?
  4. Are specific EESG/DEI metrics so critical that they require incentive plan backup?
  5. How should the selection and weighting of other goals be adjusted if EESG/DEI metrics are included?
  6. Can we deal with disclosure issues if we miss?

However, there appears to be no specific consulting guidance on supporting EESG and DEI when (a) they both were already culturally important to a company and when (b) traditional “threshold,” “target,” and “maximum” incentive plan goal setting are viewed as counter-cultural and potentially detrimental to the consistent progress the company is expected to achieve. Is it possible to include EESG and DEI measures in an incentive plan without “bonusing our culture?”

For this company, the answer was yes. Their solution was to borrow a concept from one of its manufacturing unit’s incentive plans that reinforced quality as “Job One.” At this unit, product quality is a cultural expectation every day. As such, different quality achievements are consolidated against expectations in a point score. Meeting or exceeding expectations are communicated proudly but carry no individual financial gain. Only when an aggregate quality score misses expectations are communications delivered about lessons learned and process improvements to be made, backed up with a haircut to quarterly production bonuses and a commensurate reduction in bonuses for the unit’s management team. It is a culturally congruent incentive plan for that business unit. There’s no bonus for supporting the quality culture but there is an incentive plan message sent when the culture has a quality miss.

Based on this concept, an EESG/DEI Modifier was built around an expectation that 50 points would be delivered through multiple DEI initiatives and achievements. Some factors have a higher weight than others in the scoring. However, a score of less than 50 points would result in a 5 percentage point reduction and a score of less than 40 points would result in a 10 percentage point reduction in all annual incentive plan participants’ earned awards for that year. Implementation of the EESG/DEI Modifier is slated for the annual incentive plan in FY2022. An illustration of the scorecard looks like this:

Concluding Thoughts

As in most things in life, there is not just “one best way” to consider including EESG and DEI in incentive plans. Some companies may find it most effective to consider EESG and DEI progress in individual performance assessments, and others may choose to add a leveraged upside and downside weight on EESG and DEI metrics as with financial metrics. A small but growing number of companies incorporate an EESG and DEI component in a performance share unit (PSU) plan.

For this company, and perhaps for others, the concept of allowing for upside leverage on EESG and DEI cultural imperatives is inconsistent with core values. Further, such companies may believe that continued progress on EESG and DEI results supports culture better than would a traditional “plus-and-minus” pay-performance scale. Because the culture is being supported, meeting or exceeding EESG and DEI objectives should be celebrated — not bonused. Missing a cultural expectation should produce introspection about how to improve and a message through a bonus reduction that all need to do better next year.

For companies intrigued by advancing their cultural journey through the inclusion of EESG and DEI components in incentive plans, careful thought about key objectives, weightings, scoring, and outcomes, plus support from executive management and the compensation committee, can result in a plan design that builds progress toward culturally significant objectives.

General questions about this Viewpoint can be directed to John England at john.england@paygovernance.com.

Featured Viewpoint

SEC Revisits New Regulations Applicable to Proxy Advisory Firms

Last year, the Securities and Exchange Commission (“SEC”) issued new regulations applicable to proxy advisory firms, including Institutional Shareholder Services (“ISS”) and Glass Lewis, that codified earlier guidance that proxy advisory firms should be deemed proxy solicitors. The new regulations stipulated, among other items, that any reports from the proxy advisors should be free from material errors and omissions, the methodologies used by the proxy advisors must be disclosed and transparent, that any conflicts of interest within the proxy advisors must be disclosed, and any non-public information relied upon for vote recommendations must be disclosed and identified. The new regulations are scheduled to become effective on December 1 of this year.

However, on June 1, 2021, new SEC Chair Gensler asked Commission staff to revisit the regulations and the classification of proxy advisors as proxy solicitors in particular. This action has the potential to overturn the regulations adopted by the SEC last year, freeing the proxy advisors from having to comply with the anti-fraud provisions of the proxy rules that were used to support the regulations summarized above. The text of Chair Gensler’s brief statement is below:

June 1, 2021

“In September 2019, the Commission issued an interpretation and guidance addressing the application of the proxy rules to proxy voting advice businesses. [1] Last July, the Commission adopted amendments to Rules 14a-1(l), 14a-2(b), and 14a-9 concerning proxy voting advice. [2]

I am now directing the staff to consider whether to recommend further regulatory action regarding proxy voting advice. In particular, the staff should consider whether to recommend that the Commission revisit its 2020 codification of the definition of solicitation as encompassing proxy voting advice, the 2019 Interpretation and Guidance regarding that definition, and the conditions on exemptions from the information and filing requirements in the 2020 Rule Amendments, among other matters.”

We will continue to monitor this topic and will keep our readers apprised of further SEC guidance or actions on this important matter.

General questions about this Viewpoint can be directed to Jon Weinstein at jon.weinstein@paygovernance.com or John Ellerman at john.ellerman@paygovernance.com.


[1] Commission Interpretation and Guidance Regarding the Applicability of the Proxy Rules to Proxy Voting Advice , 84 Fed. Reg. 47,416 (Sept. 10, 2019) (“2019 Interpretation and Guidance”).
[2] See Exemptions from the Proxy Rules for Proxy Voting Advice , 85 Fed. Reg. 55,082 (Sept. 3, 2020) (“2020 Rule Amendments”)

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