Apply Say On Pay Governance

---
name: apply-say-on-pay-governance
description: Use when a public company is designing executive compensation and preparing for the required periodic shareholder advisory vote on that compensation — structuring pay to demonstrate a genuine link between compensation and company performance, and responding substantively if the advisory vote result is weak, rather than treating the vote as a formality unconnected to actual pay decisions.
source: Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 951; SEC say-on-pay rules (17 CFR 240.14a-21)
tags: [law, corporate, say-on-pay, executive-compensation, shareholder-vote, corporate-governance]
related: [design-compensation-clawback-policy, design-equity-compensation-plan, design-board-independence-standard]
---

# Apply Say-on-Pay Governance

Structure executive compensation to demonstrate a genuine link between pay and company performance ahead of the required periodic shareholder advisory vote, and respond substantively if the vote result is weak — rather than treating the advisory vote as a formality disconnected from actual compensation decisions.

## Why This Is Best Practice

**Adopted by:** The Dodd-Frank Act (Section 951) requires all US public companies to hold a periodic non-binding shareholder advisory vote on executive compensation, implemented through SEC rules (17 CFR 240.14a-21), and proxy advisory firms (ISS, Glass Lewis) now issue formal voting recommendations on say-on-pay proposals that institutional investors widely follow.
**Impact:** Companies receiving a weak say-on-pay vote result (commonly defined as below 70-80% approval) and failing to respond substantively face documented downstream consequences — subsequent proxy advisory firm recommendations against compensation committee members, sustained low approval in following years, and in some cases shareholder litigation — while companies that engage proactively with investors after a weak result frequently see the following year's approval recover.
**Why best:** Treating the advisory vote as non-binding and therefore ignorable misses that the vote result is a direct, public signal of shareholder confidence in the compensation committee's judgment — a weak result left unaddressed compounds into a credibility problem for the committee and the board, while genuine pay-for-performance structuring paired with responsive engagement is what the advisory-vote mechanism is actually designed to produce.

Sources: Dodd-Frank Wall Street Reform and Consumer Protection Act (2010), Section 951; SEC say-on-pay rules, 17 CFR 240.14a-21; ISS and Glass Lewis proxy voting guidelines on executive compensation

## Steps

### Step 1: Structure compensation with a demonstrable performance link

Design executive compensation so a meaningful portion is tied to specific, disclosed performance metrics (relative total shareholder return, defined financial targets) rather than being predominantly fixed or discretionary, since proxy advisory firms and institutional investors specifically evaluate this pay-for-performance alignment when forming their voting recommendation.

### Step 2: Disclose the compensation rationale clearly in the proxy statement

Disclose, in the Compensation Discussion and Analysis section of the proxy statement, a clear rationale connecting each significant pay element to company performance and strategy — vague or boilerplate disclosure is a common driver of negative proxy advisory recommendations independent of the actual pay structure's merits.

### Step 3: Monitor proxy advisory firm guidelines ahead of the vote

Review current ISS and Glass Lewis voting guidelines on executive compensation before finalizing the year's pay structure and disclosure, since these firms' methodologies (pay-for-performance quantitative screens, problematic pay practice flags) directly influence how institutional shareholders vote.

### Step 4: Engage with major shareholders proactively, not only after a weak vote

Engage directly with the company's largest institutional shareholders about compensation philosophy before the vote, particularly if the prior year's result was weak or governance changes are significant — proactive engagement is treated more favorably by proxy advisory firms than only reaching out after a poor result.

### Step 5: Respond substantively to a weak advisory vote result

If the advisory vote result falls below a strong-approval threshold, disclose in the following year's proxy the specific changes made in response to shareholder feedback — cosmetic disclosure changes without substantive compensation structure changes are recognized by proxy advisory firms and tend not to improve subsequent-year results.

## Rules

- Tie a meaningful portion of executive pay to specific, disclosed performance metrics — not predominantly fixed or purely discretionary compensation.
- Disclose the compensation rationale specifically and substantively in the proxy statement, not in vague or boilerplate language.
- Review current proxy advisory firm voting guidelines before finalizing pay structure and disclosure for the year.
- If the advisory vote result is weak, respond with substantive compensation changes and disclose them — not cosmetic disclosure adjustments alone.

## Examples

**Substantive response following a weak vote:** A company receives a 62% approval on its say-on-pay vote — below the commonly-used strong-approval threshold. The compensation committee engages the company's ten largest shareholders directly, learns the specific concern (a large one-time equity grant seen as disconnected from performance), and redesigns the following year's grant structure to tie a larger portion to multi-year performance metrics, disclosing this change explicitly in the next proxy.

**Pay-for-performance structure supporting a strong vote:** A different company structures the majority of its CEO's target compensation as performance-based equity tied to relative total shareholder return against a disclosed peer group, and clearly explains this structure in its Compensation Discussion and Analysis — receiving strong (over 90%) approval and no negative proxy advisory firm recommendation.

## Common Mistakes

- **Treating the advisory vote as non-binding and therefore ignorable** — a weak result left unaddressed compounds into a credibility problem for the compensation committee and board.
- **Structuring compensation as predominantly fixed or discretionary with no clear performance link** — this is the primary driver of negative proxy advisory firm recommendations.
- **Responding to a weak vote with cosmetic disclosure changes rather than substantive pay structure changes** — proxy advisory firms and sophisticated institutional investors distinguish between the two.
- **Only engaging with shareholders reactively after a poor vote result** — proactive engagement ahead of a vote, particularly after governance changes, is viewed more favorably than purely reactive engagement.

## When NOT to Use

- For a private company with no public shareholders — say-on-pay requirements apply specifically to US public companies subject to SEC proxy rules.
- For a smaller reporting company or emerging growth company that qualifies for a reduced or less-frequent say-on-pay vote frequency under SEC accommodations — confirm the applicable frequency requirement rather than assuming the standard annual cadence.
- As a substitute for genuine compensation committee judgment — the advisory vote is one input into compensation decisions, not a mechanical formula the committee should follow without its own independent assessment of what's appropriate for the company.

> **Legal disclaimer:** This skill encodes professional best practices for educational purposes. It is not legal advice. Executive compensation design and say-on-pay compliance carry specific securities-law disclosure obligations — consult licensed securities counsel and a compensation consultant before finalizing executive pay structures.