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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Employment and Workers Comp

Date & Time
  • event Date

    Wednesday, November 8, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss the SEC's rules and DOJ's guidance and pilot program related to compensation clawback and how these intersect with multijurisdictional employment obligations. The panel will address employment considerations for companies and counsel when developing compensation clawback policies. The panel will also describe best practices for drafting clawback policies and for subsequent enforcement.

Faculty

Laura L. McDaniels
Partner
Pillsbury Winthrop Shaw Pittman LLP

Ms. McDaniels has over two decades of experience advising clients on compensation and benefits matters. She counsels companies across multiple industries at all stages of their life cycle--from startups to multinational corporations--on both day-to-day matters and transformative events. Ms. McDaniels also advises boards of directors, executives and investors.

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Soo-Mi Rhee
Partner
Arnold & Porter Kaye Scholer, LLP

A trusted adviser to major corporations facing high-stakes criminal and regulatory investigations, Ms. Rhee, who leads the firm’s Anti-Corruption practice, offers extensive experience in major anti-corruption, compliance, national security, and export controls and sanctions issues, with particular expertise in high-tech industries. She helps companies and institutions establish compliance programs, obtain export authorizations, obtain product classifications, conduct compliance risk assessments/audits, and conduct internal investigations. Ms. Rhee also regularly represents clients in economic sanctions, export controls, and/or Foreign Corrupt Practices Act enforcement proceedings before the Office of Foreign Assets Control, U.S. Department of the Treasury, the Bureau of Industry and Security, U.S. Department of Commerce, the Directorate of Defense Trade Controls, U.S. Department of State, U.S. Department of Justice and/or U.S. Securities and Exchange Commission.

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Joshua F. Alloy
Counsel
Arnold & Porter Kaye Scholer, LLP

Mr. Alloy handles all aspects of labor and employment matters involving day-to-day counseling, transactions, and litigation. He has experience conducting internal investigations and audits and advising and defending clients in connection with internal complaints and administrative proceedings before federal and state agencies. Mr. Alloy regularly advises clients on complicated leave and disability issues, noncompete and trade secrets, independent contractor and employee classifications, government contractor compliance, and employment aspects of corporate transactions. Mr. Alloy drafts and negotiates employment and consulting contracts, separation agreements, commission and compensation plans, and workplace policies and handbooks, and counsels clients on terminations, reductions-in-force, and alternatives to layoffs. He also frequently conducts in-house harassment and diversity trainings.

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Description

Two federal agencies have recently propounded rules and/or programs related to executive compensation clawback in order to prevent executives from profiting from wrongdoing. When drafting clawback policies, counsel should be aware of how policies intersect with federal, state, and non-U.S. employment law obligations to ensure compliance.

The SEC recently adopted final rules requiring listed companies to adopt compensation clawback policies pursuant to Section 954 of the Dodd-Frank Act. Companies are required to recover incentive-based compensation received by any current or former executive officer if such compensation was based on erroneously reported financial information. The SEC also recently approved the NYSE's and Nasdaq's proposed clawback listing standards that are effective Oct. 2, 2023, which give NYSE- and Nasdaq-listed issuers until Dec. 1, 2023, to adopt compliant clawback policies.

Mirroring the SEC's increased activity, the DOJ's criminal division recently updated its guidance which allows prosecutors to factor in compensation clawback policies in corporate criminal resolutions. The DOJ also launched a clawback pilot program that incentivizes companies--public and private, large and small--to have clawback policies in place.

Creating compensation clawback policies that also comply with employment obligations is challenging. Factors to be considered include federal, state, and non-U.S. wage and hour considerations; clawing back compensation from a former employee versus a current employee; and whether the compensation has already been paid or is to be paid out at a future date.

Listen as our expert panel addresses the latest federal regulations and guidance related to executive compensation clawback and the multijurisdictional employment law considerations to be taken into account when creating clawback policies. The panel will also describe best practices for drafting and enforcement.

Outline

  1. Purpose of executive compensation clawback
  2. SEC's executive compensation clawback rules and stock-exchange listing standards
    • Companies and employees affected
    • Effect on employment obligations
  3. DOJ's new corporate compliance guidance and pilot program incentivizing clawback policies
    • Companies and employees affected
    • Effect on employment obligations
  4. Employment law considerations and best practices for policy drafting and enforcement
    • Federal
    • State
    • International
    • Public vs. private companies
    • Current vs. former employees
    • Paid vs. future compensation
    • Other considerations

Benefits

The panel will review these and other important considerations:

  • What companies are affected by the SEC's clawback rules?
  • What companies are affected by the DOJ's clawback guidance and pilot program?
  • Who is required to draft compensation clawback policies?
  • What are the multijurisdictional employment considerations to be taken into account by counsel and clients when drafting compensation clawback policies?
  • What are the risks of enforcing compensation clawback policies under federal, state, and international law?
  • What are best practices for minimizing risk?