82 FR 44917 - Commission Guidance on Pay Ratio Disclosure

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 82, Issue 186 (September 27, 2017)

The Securities and Exchange Commission is publishing interpretive guidance to assist registrants in preparation of their pay ratio disclosures required by Item 402(u) of Regulation S-K.

[Federal Register Volume 82, Number 186 (Wednesday, September 27, 2017)]
[Rules and Regulations]
[Pages 44917-44918]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-20632]


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Parts 229 and 249

[Release No. 33-10415; 34-81673; File No. S7-07-13]


Commission Guidance on Pay Ratio Disclosure

AGENCY: Securities and Exchange Commission.

ACTION: Interpretation.

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SUMMARY: The Securities and Exchange Commission is publishing 
interpretive guidance to assist registrants in preparation of their pay 
ratio disclosures required by Item 402(u) of Regulation S-K.

DATES: Effective Date: September 27, 2017.

FOR FURTHER INFORMATION CONTACT: John Fieldsend, Special Counsel, or 
Steven G. Hearne, Senior Special Counsel, at (202) 551-3430, in the 
Division of Corporation Finance; 100 F Street NE., Washington, DC 
20549.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    In 2015, the Commission adopted a rule \1\ to implement the pay 
ratio disclosure requirement \2\ mandated by Section 953(b) of the 
Dodd-Frank Wall Street Reform and Consumer Protection Act.\3\ In doing 
so, the Commission stated its belief that, in order for the data points 
provided by the rule to be of use to investors, the pay ratio rule 
``should be designed to allow shareholders to better understand and 
assess a particular registrant's compensation practices and pay ratio 
disclosures rather than to facilitate a comparison of this information 
from one registrant to another.'' \4\ Consistent with this view, the 
Commission stated that it sought to provide flexibility in a manner 
that would ``reduce costs and burdens for registrants while preserving 
what we perceive to be the purpose and intended benefits'' of the 
statutorily mandated disclosure.\5\ Under the final rule, registrants 
must provide pay ratio disclosure for the first fiscal year beginning 
on or after January 1, 2017, which means that registrants will begin 
making pay ratio disclosures in early 2018.
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    \1\ Pay Ratio Disclosure, Release No. 33-9877 (Aug. 5, 2015) [80 
FR 50103 (Aug. 18, 2015)] (``Pay Ratio Release'').
    \2\ 15 U.S.C. 78n(i).
    \3\ Public Law 111-203, sec. 953(b), 124 Stat. 1376, 1904 
(2010), as amended by Public Law 112-106, sec. 102(a)(3), 126 Stat. 
306, 309 (2012).
    \4\ Pay Ratio Release, supra note 1, at 50106.
    \5\ Id. at 50107.
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    In light of the approaching compliance date and concerns raised 
about the implementation of the disclosure requirement,\6\ this release 
provides additional guidance to assist registrants in their compliance 
efforts. In addition, the Commission staff is publishing guidance about 
the use of statistical sampling to assist registrants in determining 
their median employee for purposes of the pay ratio disclosure.\7\
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    \6\ See, e.g., letters from Business Roundtable (Mar. 23, 2017) 
(``BRT''), Davis Polk & Wardwell LLP (Mar. 23, 2017) (``Davis 
Polk''), Financial Services Roundtable (Mar. 23, 2017) (``FSR''), 
The Insurance Coalition (Mar. 23, 2017) (``Insurance Coalition''), 
National Association of Manufacturers (Mar. 23, 2017) (``NAM''), and 
Society for Corporate Governance (Mar. 24, 2017) (``SCG'') available 
at https://www.sec.gov/comments/pay-ratio-statement/payratiostatement.htm.
    \7\ See Division of Corporation Finance Guidance on Calculation 
of Pay Ratio Disclosure, September 21, 2017, available at https://www.sec.gov/rules/interp/2017/33-10415.pdf.
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II. Commission Guidance

A. Use of Reasonable Estimates, Assumptions, and Methodologies and 
Statistical Sampling

    The pay ratio rule affords significant flexibility to registrants 
in determining appropriate methodologies to identify the median 
employee and calculating the median employee's annual total 
compensation.\8\ Required disclosure may be based on a registrant's 
reasonable belief; use of reasonable estimates, assumptions, and 
methodologies; and reasonable efforts to prepare the disclosures.\9\ 
Specifically, the rule permits registrants to use reasonable estimates 
to identify the median employee, including by using statistical 
sampling and a consistently applied compensation measure (such as 
payroll or tax records).\10\ The rule also allows registrants to use 
reasonable estimates in calculating the annual total compensation or 
any elements of annual total compensation for employees.\11\ The rule 
further provides that if a registrant changes its methodology or its 
material assumptions, adjustments, or estimates, and the effects are 
significant, the registrant must briefly describe the change and the 
reasons for the change.\12\
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    \8\ See Pay Ratio Release, supra note 1, at 50135--50138.
    \9\ See, e.g., Instruction 2 and Instruction 4 to Item 402(u) of 
Regulation S-K (17 CFR 229.402(u)).
    \10\ See Instruction 4 to Item 402(u) of Regulation S-K.
    \11\ Id.
    \12\ Id.
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    In light of the use of estimates, assumptions, adjustments, and 
statistical sampling permitted by the rule, pay ratio disclosures may 
involve a degree of imprecision. This has led some commenters to 
express concerns about compliance uncertainty and potential 
liability.\13\ In our view, if a registrant uses reasonable estimates, 
assumptions or methodologies, the pay ratio and related disclosure that 
results from such use would not provide the basis for Commission 
enforcement action unless the disclosure was made or reaffirmed without 
a reasonable basis or was provided other than in good faith.
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    \13\ See, e.g., letters from BRT, Davis Polk, and NAM.
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B. Use of Internal Records

    Item 402(u) requires a registrant to disclose the median of the 
annual total compensation of all its employees excluding its principal 
executive officer.\14\ We are providing guidance as to the use of 
existing internal records, such as tax or payroll records, to make this 
determination.
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    \14\ 17 CFR 229.402(u)(1).
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1. Non-U.S. Employees
    The final rule defines the term ``employee'' to include U.S. 
employees and employees located in a jurisdiction outside the United 
States (``non-U.S.

[[Page 44918]]

employees''). In the Pay Ratio Release, we acknowledged that the 
inclusion of non-U.S. employees would raise compliance costs for 
multinational companies.\15\ To address concerns about compliance 
costs, the rule permits registrants to exempt non-U.S. employees where 
these employees account for 5% or less of the registrant's total U.S. 
and non-U.S. employees, with certain limitations.\16\ We are clarifying 
that a registrant may use appropriate existing internal records, such 
as tax or payroll records, in determining whether the 5% de minimis 
exemption is available.\17\
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    \15\ See Pay Ratio Release, supra note 1, at 50122--50133.
    \16\ 17 CFR 229.402(u)(4)(ii). See also Pay Ratio Release, supra 
note 1, at 50124-50125 (noting that registrants using the de minimis 
exemption are required to provide certain disclosures).
    \17\ See, e.g., Instruction 1 to Item 402(u) of Regulation S-K 
(17 CFR 229.402(u)) and Pay Ratio Release, supra note 1, at 50119--
50120 (indicating that determination of the median employee may be 
made on any date within the last three months of the registrant's 
last completed fiscal year).
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2. Median Employee
    We also believe that the use of existing internal records may, in 
many circumstances, be appropriate in identifying a registrant's median 
employee. Instruction 4 to Item 402(u) permits a registrant to identify 
its median employee using a consistently applied compensation measure, 
such as information derived from the registrant's tax or payroll 
records. We are clarifying that a registrant may use internal records 
that reasonably reflect annual compensation to identify the median 
employee, even if those records do not include every element of 
compensation, such as equity awards widely distributed to employees.
    We recognize that, when calculating total compensation in 
accordance with Item 402(c)(2)(x) for the identified median employee 
that the registrant identified using a consistently applied 
compensation measure based on internal records, the registrant may 
determine that there are anomalous characteristics of the identified 
median employee's compensation that have a significant higher or lower 
impact on the pay ratio. The Commission discussed this issue in the 
adopting release specifically and noted that, in such a circumstance, 
instead of concluding that the consistently applied compensation 
measure the registrant used was unsuitable to identify its median 
employee, the registrant may substitute another employee with 
substantially similar compensation to the original identified median 
employee based on the compensation measure it used to select the median 
employee.\18\
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    \18\ See Pay Ratio Release, supra note 1, at 50137-50138 
(providing that the registrant must disclose the substitution as 
part of its brief description of the methodology it used to identify 
the median employee).
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C. Independent Contractors

    For purposes of Item 402(u), the term ``employee'' or ``employee of 
the registrant'' is defined as ``an individual employed by the 
registrant or any of its consolidated subsidiaries.'' \19\ Item 
402(u)(3) excludes from the definition those workers who are employed, 
and whose compensation is determined, by an unaffiliated third party 
but who provide services to the registrant or its consolidated 
subsidiaries as independent contractors or ``leased'' workers.\20\ In 
the Pay Ratio Release, the Commission indicated that excluding these 
workers is appropriate, because registrants generally do not control 
the level of compensation that these workers are paid.\21\
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    \19\ 17 CFR 229.402(u)(3).
    \20\ Id.
    \21\ See Pay Ratio Release, supra note 1, at Section 50165-
50166.
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    Some commenters have expressed concerns about the application of 
the rule's definition of ``employee.'' \22\ Because registrants already 
make determinations as to whether a worker is an employee or 
independent contractor in other legal and regulatory contexts, such as 
for employment law or tax purposes, some commenters suggested that the 
Commission should allow registrants to use widely recognized tests to 
determine who is an ``employee'' for purposes of the rule.\23\ Such a 
test might, for example, be drawn from guidance published by the 
Internal Revenue Service with respect to independent contractors.\24\
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    \22\ See, e.g., letters from Davis Polk, FSR, SCG, and Insurance 
Coalition.
    \23\ See, e.g., letters from Davis Polk and Insurance Coalition.
    \24\ See, e.g., Publication 15-A Employer's Supplemental Tax 
Guide (2017).
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    Item 402(u)(3) makes clear that an ``employee'' is an individual 
employed by the registrant.\25\ The provision in Item 402(u)(3) 
indicating that the definition of ``employee'' does not include workers 
who are employed, and whose compensation is determined, by an 
unaffiliated third party describes one category of workers that is 
expressly excluded from the definition of ``employee'' under the rule. 
The provision was not intended to serve as an exclusive basis for 
determining whether a worker is an employee of the registrant. 
Accordingly, we believe it would be consistent with Item 402(u) for a 
registrant to apply a widely recognized test under another area of law 
that the registrant otherwise uses to determine whether its workers are 
employees.\26\
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    \25\ 17 CFR 229.402(u)(3).
    \26\ Because we believe most widely recognized tests likely will 
consider how compensation is determined as a factor in identifying a 
registrant's employees, we believe these tests generally would 
provide a reasonable means of complying with Item 402(u). See, e.g., 
note 24. The description of the methodology required by Instruction 
4 of Item 402(u) requires a registrant to include an explanation of 
any material assumptions and adjustments used.

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    By the Commission.

    Dated: September 21, 2017.
Brent J. Fields,
Secretary.
[FR Doc. 2017-20632 Filed 9-26-17; 8:45 am]
 BILLING CODE 8011-01-P