Prior to Dodd-Frank, the SEC published a final rule on Compensation Risk Assessments. Among other things, this rule requires that registrants make new or revised disclosures (in their proxies) about compensation policies and practices that present material risks to the company. To date, most companies have either ignored this requirement or given it short shrift. Perhaps that is a natural response to neither internal nor external compensation practitioners customarily dealing with risk and risk assessments.
Unlike many other proxy requirement related to compensation, this one in Item 402(s) is not restricted to executive compensation. Rule 402(s) asks companies to look at all of their compensation practices to determine what material risks are presented to the company. As a shareholder, I have yet to see a proxy that complies with the spirit of the rule.
What is compensation risk? Sadly, nobody seems to know. But, since I am writing here, I will take my shot at it. A compensation risk exists when a company's programs and policies are such that compensation could call fall significantly out of line with the company's earnings or with the company's ability to pay compensation as suggested by those policies and programs. This could occur when incentive payouts are keyed to too many subjective or non-financial measures. This could occur when a company has results that are particularly volatile year after year and as a result, long-term incentive payouts are more reflective of past years' performance than that in the most recent year.
Unfortunately, that seems to happen fairly frequently. And, as a result, I think that companies should take this compensation risk assessment more seriously. A benefit of doing so would be that their compensation programs would be less likely to present material risks.
You knew this would be the case, but I have some thoughts on the matter. If implemented, my thoughts might help companies to decrease these risks. They're not perfect -- nothing is -- but, here are a few.
Weight/Age the Years in Long-Term Incentive Plans
In a typical long-term incentive plan, an executive is rewarded for performance over an extended period of time (three years is not atypical). So, to use Total Shareholder Return (TSR) as an example, an executive would be rewarded at (or close to) the end of 2015 for his or her company's TSR over the period from the beginning of 2013 to the end of 2015. That's fine, but frankly, by the end of 2015, who cares all that much about 2013 TSR? Many shareholders will not have been shareholders in 2013.
Suppose instead, 2013 TSR was given a weighting of 0.5, 2014 TSR was given a weighting of 1.0, and 2015 TSR was given a weighting of 1.5. Rather than taking an arithmetical (or geometric) average, we would use a weighted (for aging) average.
It makes a lot of sense, doesn't it? It rewards long-term performance and it should, but it puts a bit more weight on what you've done for me lately. And, the great part about it is that each year over the 3-year period gets the same total weighting that it does right now, but it stops the executive team from resting on its laurels from a great 2013.
Discretionary Profit-Sharing Tied to Corporate Performance has Merit
Way back when, profit sharing plans were tied to profits. Gee, that sounds revolutionary doesn't it? If the company made a lot of money, it distributed more of it through its profit sharing plan. If it made less, it distributed less, and if there were no profits, it distributed none at all. Then, the good folks in the Treasury Department informed us that you don't need to have profits in order to share profits.
Perhaps I am missing something here, but it makes sense to tie some elements of compensation, even at the lower-paid levels of the company, to corporate performance. It gives everyone a stake in how the company is doing. It's similar in the way that it motivates employees to an ESOP and according to the Employee Ownership Foundation, an ESOP advocacy group, companies that have ESOPs perform better. But, profit-sharing plans are, from my viewpoint, more compliance friendly and flexible than ESOPs.
Extend it to Unions
Labor unions will tell you that unionized companies perform better than those with non-union companies. They will also tell you that those with mandatory (for specific job categories) union membership perform better than those where it is optional or right to work.
Make the unions make the company perform better. Let the unions share in the success of the company, or the lack of success if that's the case. In other words, tie the rewards of the union and its members to the corporate performance. If the company does well, presumably the union had something to do with it. If the company does poorly, it's tough for the union to sit in the corner and say that the poor performance occurred despite the exemplary work of union employees.
Frankly, if the union says this is not the case, then all of its other words are just rhetoric. You're not a contributor to results in only the good years; you influence them in the bad years as well.
Measure the Risk
Companies and their shareholders really should understand their compensation risks. This may sound strange to some, but if the team currently considering these risks is not trained and educated in risk assessment, then find someone who is.
I'm biased in this regard, but since actuaries are trained in risk assessment and risk management and understand compensation and benefit programs, nobody may be better positioned to assist you with this. Ask an actuary.