Among the rules that have been finalized, most at risk, several say, is one that was a last-minute addition to the Dodd-Frank financial reform act that was only finalized last year by the U.S. Securities and Exchange Commission and won’t be disclosed by most companies until 2018. It requires companies to do some often embarrassing math: Publish the ratio of what their CEO makes, compared to their median worker.
“The smart money is on the Trump administration looking to roll back the CEO pay ratio as soon as possible,” said David Wise, North American sales leader for Korn Ferry Hay Group. “That’s the provision that the Republicans think make the least sense within the Dodd-Frank portfolio and is likely to be the first to go within the exec comp provisions.”
For one, they say, the rule was not something investors demanded.
“It’s designed to embarrass CEOs and their boards around the CEO pay issue,” Wise says. Details about what CEOs make has long been something companies have been required to disclose, leaving some to argue the ratio isn’t that telling, even if it could help to unearth outsize pay practices within industries.
Moreover, companies haven’t yet had to disclose it, meaning the SEC, particularly under Republican control, could decide to simply defer the deadline until Congress decides to act. Its lone Republican commissioner, Michael Piwowar, wrote a stinging dissent of the pay ratio rule last August. “It was basically a roadmap for litigating it,” says Jim Barrall, global co-chair of the executive compensation practice at Latham & Watkins.
The business community, meanwhile, also isn't not a fan: Disclosing that a CEO makes a few hundred times their median worker was never going to be popular, and sprawling companies with workforces that span the globe have complained that implementing the rule, which requires coming up with the compensation of the median worker, is costly and time-consuming.
Sharing the number could also lead to some uncomfortable discussions among employees who discover how little they make compared to the CEO — or their peers overall. Many companies, says Steve Seelig, senior regulatory adviser at Willis Towers Watson, have been preparing themselves for how to communicate the figure to employees.
"The day that the disclosure comes out, it’s going to be like the stages of grief for a lot of employees. It’s going to look like a big number," and one that could lead workers to ask "am I paid fairly?" Seelig says.
Executive pay experts give much better odds for survival, if potentially with some modifications, to another major executive pay provision from Dodd-Frank. For five years, companies have been required to allow investors to have an advisory vote on the paydays their executives receive.
Known as "say-on-pay," it’s become a popular measure with investors and has led to increased dialogue between companies and their shareholders, says Charles Elson, the director of a corporate governance center at the University of Delaware.
"I think it’d be rather difficult to repeal say on pay," he said, noting that it acts as a "safety valve" that notifies directors of grumbling from investors so they can take action before they start voting against the board members themselves. "It may be more popular with directors than what you think. It’s better to listen to your holders then end up getting a withhold vote."
Moreover, investors are hardly voting in droves against CEO pay. Average approval rates are over 90 percent, and when it sinks much lower, the votes tend to spark more discussion between the two sides. Says Seelig: "The more global question on say-on-pay is whether it’s had a beneficial effect — not necessarily on tamping down CEO pay, but rather, if it’s improved the process by which companies engage with their shareholders. I think the answer to that is an unequivocal yes."
Still, even if the pay ratio's future is questionable, consultants aren't advising companies to hold off running the numbers just yet. For one, Trump’s populist strain still leaves some uncertainty.
"It is confusing because the president-elect has sent very mixed messages about CEO pay and regulation," Wise says. Though very anti-regulation, "on the other hand he was just elected as a populist candidate. There’s obviously a dynamic tension on the CEO pay ratio on those two points."
Meanwhile, there's enough of a move toward pay transparency with the proliferation of sites like Glassdoor and PayScale that some companies could be forced to respond to other groups who decide to calculate the numbers for them. The idea that the two numbers should be compared is well-engrained: Management theorist Peter Drucker once espoused a 20-to-1 ratio limit, and some groups or media outlets have already published them. (According to the Economic Policy Institute, the average CEO made 276 times the typical worker in 2015.)
"There are so many web sites forcing pay transparency to occur that there’s a natural push where there’s more and more transparency occurring," says Brian Kropp, H.R. practice leader for the advisory firm CEB. As a result, companies should prepare to have their own numbers at the ready even if the pay ratio rule is overturned and companies are no longer required to disclose the number.
"Those ratios are going to be out there one way or another," he says. "Even if they don’t have to do it, they still need to be prepared to release that information."