You close a deal, you get compensated. Now what if this compensation is taken back? Sounds awful, right?
Even so, clawback provisions have become a common feature in compensation packages over the years. But, what exactly is a clawback?
More often than not, clawback provisions are written into compensation packages. The aim is to deter employees from boosting their compensation at the expense of the company. But in case executives cash in their compensation and then leave, clawbacks can be impossible to enforce.
Worried about your hard-earned compensation being taken back? Don’t worry! Read this article to know more about clawbacks and how/when they are enforced.
Table of Contents:
- Types of Clawbacks
- The Last Resort: Why do companies use clawbacks?
- Clawbacks- Benefits
- Clawbacks- Limitations
- Clawbacks in the real world
- Final Thoughts
Although the idea of the executive pay ‘clawback’ has been in vogue since the early 2000s, it is only recently that it has become an increasingly common provision in executive compensation packages.
To put it simply, a clawback is a contractual provision that allows an employer or benefactor to recover money that has already been paid out to an employee.
This is mostly enforced if the employee fails to meet certain conditions or if the payment was made in error. Clawback provisions may also be used in executive compensation agreements to incentivize good performance and discourage unethical behavior.
They may also be used in situations where an individual receives a benefit or payment that they are not entitled to, such as in cases of fraud or misrepresentation. In such cases, the clawback provision may also include a penalty or interest on the amount owed.
While clawbacks are most prevalent in the finance industry, life-sciences companies may also use them time and again for:
- Executive bonuses: A clawback may be initiated in response to poor performance or undesirable behavior
- Pensions: A pensioner may be asked to return an erroneously paid pension
- Contracts: Many a times, contracts contain a clause that can trigger clawbacks if the products or services offered don’t meet the terms of the contract
- Dividends: Shareholder dividends might be clawed back if the company cannot support the payments
In theory, clawback policies allow companies to recover compensation already paid to employees if their decisions and actions turn out to be legally and ethically questionable. However, in practice this is not always the case.
Types of Clawbacks:
Clawbacks can take many forms, but they generally fall into two categories: performance-based clawbacks and misconduct-based clawbacks.
Performance-based clawbacks are tied to financial or operational metrics, such as earnings per share or customer satisfaction scores.
If an executive or employee is found to have engaged in behavior that caused the company to miss these targets, the company can claw back a portion of their compensation.
Misconduct-based clawbacks, on the other hand, are triggered by specific acts of wrongdoing, such as fraud, insider trading, or other violations of company policies.
If an executive or employee is found to have engaged in such behavior, the company can recover any compensation paid to them during the period in which the misconduct occurred.
The Last Resort: Why do companies use clawbacks?
It is important to understand that companies use clawbacks as the last resort, when there is absolutely no other way to go. Therefore, clawbacks are used sparingly in cases where companies have suffered reputational damages or legal damages. Some of the most common reasons are:
Protection against liabilities:
Clawbacks are the safety net for any company. They are a way to mitigate any risks that come with potential fraud, misconduct or erroneous payments. In case a company faces any of these risks, clawback provisions allow them to recover the money lost. In industries like the Finance Industry, clawbacks can stop employees from using confidential information. Clawbacks may be used for:
- Misconduct: Clawbacks may be used to recover compensation or bonuses paid to employees who engaged in misconduct or violated company policies. This can include cases of fraud, insider trading, or other illegal or unethical behavior.
- Restitution: Clawbacks may be used to recover funds that were obtained through illegal or fraudulent means, such as embezzlement or money laundering. This can be part of a restitution process in which the funds are returned to their rightful owners or victims.
- Overpayment: Clawbacks may be used to recover funds that were mistakenly overpaid, such as in the case of an accounting error or accidental overpayment of benefits.
- Recoupment of incentives: Clawbacks may be used to recoup incentives paid to employees or contractors in cases where the goals or benchmarks that the incentives were based on were not actually met.
Respond to unforeseen financial circumstances:
This is no secret- businesses involve a lot of risks! Imagine a company facing an unexpected drop in profits. In this case, the company might want to reclaim funds from shareholders. Clawback provisions enable the company to take such steps.
Provide assurance to investors:
Clawbacks are also put in place in order to provide assurance to investors. Clawback provisions provide increased credibility to companies and in turn make the investors feel more comfortable with putting their money in.
Benefits of Clawbacks:
One of the key benefits of clawbacks is that they provide a powerful incentive for executives and employees to act in the best interests of the company and its shareholders.
By tying compensation to performance metrics or conduct, companies can encourage their employees to focus on achieving long-term goals and to avoid actions that could harm the company's reputation or financial health.
In addition to their motivational benefits, clawbacks can also help Incentive Compensation Management leaders mitigate some of the risks associated with executive compensation. For example, when executives receive large bonuses or stock awards, they may be incentivized to take on excessive risk in order to maximize their potential payout.
By including a clawback provision, companies can reduce the likelihood that executives will engage in risky behavior, knowing that they may be required to repay some or all of their compensation if things go wrong.
Limitations of Clawbacks:
Despite these benefits, clawbacks are not without controversy. One of the main criticisms of clawbacks is that they are difficult to enforce, particularly in cases where the employee in question has already left the company.
In such cases, the company may have to rely on legal action to recover the compensation, which can be time-consuming and expensive.
Another concern is that clawbacks may discourage talented executives from joining or staying with a company. If executives feel that their compensation is too closely tied to performance or conduct, they may be reluctant to take on leadership roles, particularly in industries that are subject to greater regulatory scrutiny.
Clawbacks in the real world:
Despite these challenges, many companies have implemented clawback provisions in recent years, in response to increasing regulatory pressure and shareholder demands for greater accountability. However, applying the provision is a challenge of its own.
Take for example Goldman Sachs announcing that it would use clawbacks to recover $174 million from current and former executives following the Board’s approval of a $2.9 billion settlement of claims in respect of its role in the Malasian IMDB scandal in 2012-13.
Goldman has been successful in recovering some of this money through deductions from the 2020 compensation of executives who are still serving. But others had already cashed in their rewards and left the firm, including former Goldman president Gary Cohn.
Truth be told- there’s little Goldman Sachs can do about this!
While clawbacks are not a panacea for all executive compensation issues, they can be a powerful tool for aligning the interests of executives and shareholders, making sales performance management easier, and for promoting long-term value creation.
As companies continue to grapple with the complex challenges of executive compensation, clawbacks are likely to remain an important part of the solution.