Executive Compensation

On March 11, 2021, President Biden signed into law the American Rescue Plan Act of 2021 (the “ARPA”), the much-debated $1.9 trillion COVID-19 stimulus legislation. The ARPA includes a provision, added by Senate amendment on March 6, 2021, which will further limit the deductibility of amounts deemed to be “excessive employee remuneration” under

On Wednesday, March 10, after engaging in conversations with stakeholders, the U.S. Department of Labor’s Employee Benefits Security Administration issued an enforcement policy statement in which it declined to enforce two DOL rules put in place by the Trump administration in 2020.

The first of these rules placed limitations on the ability of plans subject to ERISA to invest in environmental, social and governance (“ESG”) funds. In particular, it provided that a fiduciary’s duty of loyalty and prudence under ERISA would only be satisfied if investments were selected solely on the basis of pecuniary factors (defined as factors that have a material effect on the risk and return of an investment), and that ESG factors could only be considered to the extent they created economic risks or opportunities that qualified investment professionals would treat as material economic considerations under generally accepted investment theories. The ESG rule, which many regarded as making ERISA plan investments in ESG-oriented funds prohibitively difficult, received overwhelmingly negative comments from both financial institutions and the public at large. This latest development is not surprising, as the Biden administration had previously signaled that it would be reexamining this rule.
Continue Reading DOL Declines to Enforce Trump Administration Rules on ERISA Plan Investments, Proxy Voting

Over the past few years, many boards have expanded their oversight and consideration of human capital management (HCM) to encompass issues beyond executive hiring and compensation. Before the COVID-19 pandemic, technology and the culture change brought by a new generation of workers had already commenced an irreversible shift in paradigm that established HCM as a board-level issue with vital strategic and risk oversight implications.
Continue Reading Fulfilling the Board’s Expanded Oversight Role in Human Capital Management

Stakeholder attention to environmental, social and governance (ESG) issues continued to grow throughout 2020 driven by the COVID-19 pandemic (health and safety), the Black Lives Matter movement (diversity and inclusion) and worldwide wildfires (climate change), to name a few. Prodded by investors and other stakeholders, companies have increasingly realized the importance to their businesses of managing human capital and monitoring human rights, whether in respect of their own workforces or their supply and customer chains. Further, disclosure and engagement around companies’ human capital management (HCM) practices have become more important and even the Securities and Exchange Commission, which had in the past largely avoided specific ESG disclosure mandates, has weighed in and now requires disclosure regarding human capital resources in annual reports on Form 10-K.
Continue Reading ESG Considerations for Incentive Compensation Programs

At the end of last year, Institutional Shareholder Services (“ISS”) released a handful of updated FAQs on equity compensation plans and compensation policies as well as a slightly updated pay-for-performance mechanics statement; there were no substantive changes to the peer group FAQs.[1] In addition to providing the 2021 Burn Rate Benchmarks for ISS equity plan evaluation (which are effective for shareholder meetings on or after February 1, 2021), the updates address questions regarding the inclusion of a terminated equity plan’s existing share reserves in ISS’ Shareholder Value Transfer (“SVT”) analysis for new equity plan approval proposals, threshold passing scores for the Equity Plan Scorecard (“EPSC”) framework, quantitative pay-for-performance screens and how ISS will evaluate COVID-related pay decisions.
Continue Reading ISS Issues 2021 Updates to Certain Compensation Related FAQs and Policies

In 2018, the Securities and Exchange Commission (the “SEC”) solicited comment on ways to modernize Securities Act Rule 701 (“Rule 701”), the registration statement on Form S-8 (“Form S-8”), and the relationship between the two regulations. Following up on this effort, the SEC recently published several amendments to Rule 701 and Form S-8 to simplify

Three recently filed shareholder derivative lawsuits contain intentionally provocative allegations that, despite public statements emphasizing the importance of diversity within their respective organizations, the boards and executive management teams of Oracle, Facebook, and Qualcomm remain largely white and male, and have failed to deliver on their commitments to diversity.  While calls to strengthen commitments to

The COVID-19 pandemic is likely a watershed moment for the traditional structure of America’s business workforce.  Although there is much uncertainty and opaqueness about the future, it seems clear that in the short term “remote” work arrangements – remote from large commercial office complexes and from concentrated city centers – will become more common for a substantial part of the workforce.

In the medium and longer terms, the pandemic may also support trends toward a more gig-based workforce in sectors of the labor market that are not currently significantly gig-based, specifically for workers in white-collar, business service industries.  We lay out below a few of the reasons to anticipate that result and briefly explore the principal legal implications for business.  As virtually all companies are considering the impact of the pandemic on their businesses, and specifically the cost-saving potential tied to remote work where feasible, they should take the opportunity now to also consider the possibility that gig-based workforce trends will impact them and how the steps they take in the short term may influence any such impact.  For many public companies, the trends and issues discussed below fall under the umbrella of human capital management strategy, as to which the board of directors may be expected to exercise oversight.[1]
Continue Reading The Gig is Up? COVID-19 & Remote Work Trend Toward Growth in Gig Labor*