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Publication | August 2015
The SEC adopted the final pay ratio rule required by Dodd-Frank.
On August 5, 2015, the SEC adopted a final rule implementing Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This new rule is reflected in Item 402(u) of Regulation S-K. Dodd-Frank Section 953(b) and Item 402(u) require companies to disclose for the prior fiscal year:
The SEC intends this information to assist shareholders in exercising their say-on-pay voting rights under Section 951 of Dodd-Frank and to provide shareholders with further insight into the pay practices of the company.
The rule contains many specific requirements and possible exemptions that the company is required or permitted to consider in performing the calculations above. Some highlights are:
Compliance starts with the executive compensation disclosures for the fiscal year beginning on or after January 1, 2017.
For non-exempt companies that use calendar fiscal years and report their executive compensation in their annual meeting proxy statement within 120 days of fiscal year end, the first filing that will require the pay ratio disclosures will be the proxy statement for their 2018 annual meeting of shareholders. For calendar fiscal year companies that disclose executive compensation information in their Annual Report on Form 10-K, their annual report for fiscal year 2017, filed in early 2018, will be their first pay ratio disclosure filing.
All SEC reporting companies except certain companies that generally have reduced disclosure requirements
All SEC reporting companies will be required to comply with the pay ratio disclosures, except certain companies that often have reduced disclosure requirements. These include:
The rules also include transition periods that do not require compliance for companies that are: (i) new registrants, (ii) companies engaging in business combinations or acquisitions, and (iii) companies that cease to be smaller reporting companies or emerging growth companies.
All filings that require executive compensation disclosure under Item 402 of Regulation S-K.
Any filing described in Item 10(a) of Regulation S-K that contains executive compensation disclosure under Item 402 of Regulation S-K must include the pay ratio disclosures. Generally, these will include certain:
1 The personal identity of the median employee should not be disclosed, nor should that person be indefinable from the disclosed information.
2 The ratio may be presented in two formats, either as a numerical ratio (e.g. 100 to 1; 100:1), or as a narrative description (e.g." the PEO's annual total compensation is 100 times that of the median of the annual total compensation of all employees"). The adopting release presents the ratio as a PEO to median ratio, but the text of the rule can also be read to require a median to PEO ratio. The ratio cannot be presented as a percentage.
3 Pay ratio disclosures can be contained in the company's annual meeting proxy statement rather than its annual reports on Form 10-K, if the proxy statement is filed later, as long as the pay ratio disclosure in the proxy statement is filed not later than 120 days after the end of the fiscal year.
4 This does not include annualizing income of temporary or seasonal workers, or adjusting part-time to full-time.
5 However, the SEC has stated that company to company comparisons are not the stated or intended goal of the pay ratio disclosures.
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