Negotiating Executive Employment Agreements: Cutting A Path Through The Regulatory Thicket
Wendi S. Lazar and Katherine Blostein write about negotiating executive compensation agreements, and current issues. The landscape of executive compensation has changed significantly since the financial crisis of 2008. As a result of the ensuing downturn and increased public scrutiny, executives’ leverage in negotiating the terms and conditions of their employment and equity agreements has decreased. The overwhelming outcry about excessive pay from shareholders and the public following the downturn resulted in new legislation that limits executive pay for top executives at public companies and imposes compensation restrictions and disclosure requirements on large companies generally. However, in the intervening years, the Securities and Exchange Commission still has not enacted rules implementing a significant portion of the new legislation, and therefore much uncertainty remains. In addition, the past several years have seen a return to performance-based compensation, as well as a movement towards eradicating excessive guaranteed bonuses on Wall Street and among other bonus-based businesses. Wendi S. Lazar and Katherine Blostein write about negotiating executive compensation agreements, and current issues. Bloomberg BNA, Pensions and Benefits Daily. Reproduced with permission from Pension & Benefits Daily, 127 PBD, 07/02/2014. Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
Wendi S. Lazar and Katherine Blostein. Bloomberg BNA, Reproduced with permission from Pension & Benefits Daily, PBD, 11/02/2011. Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
The financial crisis of 2008 and the ongoing down-turn in the economy has had a significant effect on executive compensation and on executives’ leverage in negotiating the terms and conditions of their employment and equity agreements. The overwhelming outcry about excessive pay from shareholders and the public has resulted in federal regulations that limit executive pay for top executives at public companies and impose compensation restrictions and disclosure requirements on large companies generally. In addition, there has been a return to performance-based compensation, as well as a movement toward eradicating guaranteed bonuses on Wall Street and among other bonus-based businesses.
However, because of a need for top talent in tough times, companies are adjusting to the newly imposed restrictions and, where possible, are finding creative ways to structure compensation packages for employees. Unfortunately, public opinion is not as easily assuaged. The current challenge for companies and their counsel negotiating executive agreements is to balance the need for attracting and compensating top talent against potential negative public opinion. How hard and where to push becomes a concern in order to ensure that these agreements pass muster with the companies’ shareholders.
With these considerations in mind, attorneys representing executives should be aware of the most recent trends, developments, and regulations that will affect negotiations in the current economy.
Executive Pay: Skydiving With a New Parachute; Recent regulations affecting Executive Compensation.
Wendi Lazar and Katherine Blostein survey the new laws and regulations associated with the current economic downturn and the resulting shifts in the form, nature, and timing of executive compensation. Recently enacted laws like the American Recovery and Reinvestment Act of 2009 and the Dodd-Frank Wall Street Reform and Consumer Protection Act, as well as Section 409A of the Internal Revenue Code, impose firm restrictions on the compensation of top executives; the restrictions vary based on the size of the employer and whether it is publicly traded. This article concludes that “the days of paying excessive executive compensation unchallenged by regulators and shareholders [are] over.” The authors emphasize the need for attorneys negotiating executive employment agreements to be aware of these and other developments and their impact on the type of compensation packages employers are offering their top executives. Attorneys also must ensure that all agreements about compensation are memorialized in an employment agreement or other contract, including provisions for the treatment of deferred compensation in the event of termination.
*Originally published as Wendi S. Lazar and Katherine Blostein, “Changing Economy Impacts Executive Pay,” BNA Pension & Benefits Daily, 172 PBD, Sept. 09, 2009.
Reproduced with permission from Executive Compensation Library on the Web, XCLW, 06/06/2011. Copyright
Multiple Issues In Corporate Raiding Of Employees: Outside Counsel
Wendi S. Lazar and Katherine Blostein, New York Law Journal (online), May 1, 2009
Now that bankruptcy proceedings have replaced mergers and acquisitions, poaching key employees rather than buying a division can be cost effective. Corporate raiding of employees, however, raises serious legal and financial concerns for everyone involved, but particularly for employees and their counsel.
Poaching a coveted employee or raiding a team is bound to leave behind an angry employer who wants revenge. The hardest job for employee-side counsel is to keep the client from becoming a defendant in a lawsuit against both the employee and the new employer.
Knowing how to prevent or minimize an employee's liability in this situation is critical. Counseling employees on terms and conditions to be negotiated with the new employer before departure will protect them from economic loss and protracted and costly litigation.
Arbitrability Of Sarbanes-Oxley Whistleblower Claims
This article explores the arguments presented by member firms and registered employees, and outlines what arbitration panels have decided. Laurence S. Moy. Pearl Zachlewski, Linda Neilan, and Katherine Blostein. The Neutral Corner, Newsletter of FINRA Neutrals, Volume 1, 2008.
Since the passage of the Sarbanes-Oxley Act of 2002 (SOX), arbitrators handling employment claims may be faced with a throny question concerning SOX whistleblower claims: Should a SOX claim be litigated in court or arbitrated? Ultimately, the question comes to whether SOX whistleblower claims constitute "employment discrimination" claims, and are thus exempt from arbitration under Rule 13201 of the Code of Arbitration Procedure for Industry Disputes (Code). This article explores the arguments presented by member firms and registered employees and outlines what arbitration panels have decided.
Whistleblower Claims Under The Sarbanes-Oxley Act Of 2002
Laurence S. Moy, Linda A. Neilan, and Hollis Pfitsch (Summer Associate), Practising Law Institute, October 7-8, 2004, and December 9-10, 2004.
In the wake of recent accounting and corporate scandals, Congress passed the Sarbanes-Oxley Act of 2002 (hereinafter, “Sarbanes-Oxley,” “SOX,” or the “Act”), Public L. No. 107-204, Sec. 806, codified at 18 U.S.C. § 1514A.1 In addition to providing greater oversight of the accounting industry and protecting investors, the Act prohibits employers from retaliating against whistleblowers. (“Whistleblower” might be considered a misnomer since the Act’s scope is not limited to employees who “blow the whistle” by refusing to engage in illegal or wrongful acts or by reporting such activities to the employer or the appropriate authorities.) The Act provides extensive coverage to employees who report improper conduct as well as employees who participate in proceedings relating to same. Companies that fall under the purview of Sarbanes-Oxley are prohibited from discharging, demoting, suspending, threatening, harassing, or discriminating against any employee who engages in protected activity. 18 U.S.C. § 1514A(a).
Prior to Sarbanes-Oxley’s enactment, federal and state whistleblower statutes provided limited protection for a narrow class of employees. The False Claims Act covers employees only if they report fraud on the federal government. 31 U.S.C. § 3730(h).2 In New York, a state statute had provided pre-Sarbanes-Oxley whistleblowers with extremely limited coverage. That statute, New York Labor Law § 740, only protects an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” N. Y. Lab. Law § 740(2). Thus, Sarbanes-Oxley has vastly changed the horizon of protection for whistleblowers in the private sector.
This paper addresses the whistleblowing provisions of the Act and its accompanying regulations, provides guidance to lawyers advising companies responding to potential whistleblower complaints of improper conduct, and reviews the duties of lawyers to report wrongful conduct as per the Securities and Exchange Commission’s (“SEC” or “Commission”) new regulations.
Non-Compete Agreements: Emerging Issues From The Perspective Of Employee's Counsel
Co-authored by Wayne N. Outten, Anne Golden, and Nantiya Ruan, 2001.
Today more than ever, trained employees are valued by employers who want to do everything in their power to keep them from leaving and taking their skills and knowledge with them. Undoubtedly, this is due in part to our nation's unemployment rate reaching a thirty-year low. Add the current business environment of increased mobility, decreased loyalty, and the tremendous amount of capital resources spent in creating intellectual property, and companies are increasingly requiring key employees to sign harsh non-compete agreements to discourage employee defection or "corporate raiding."
The law still favors free mobility of employees. But along with an increased number of employers requiring employees to sign non-competition agreements comes an increased number of suits to enforce these restrictive covenants. Consequently, the body of law governing this area has been changing. This outline will give practical advice to employee advocates on ways to best protect their clients' interests when confronted with non-competition agreements and will examine the emerging trends in this narrow, but increasingly pertinent, area of employment law.