Trump Presidency Marked by Unpredictability

There is an endless list of adjectives to describe the first six months of the Trump administration and many of them would be inappropriate to mention in this forum. But one modifier is both accurate and acceptable — and that word is unpredictable.

For context, the first six months of the Obama and Bush administrations were fairly predictable. Both embarked on a legislative agenda that looked and felt a lot like their campaign platforms, and while the legislative process for both was rocky, we knew what we were in for. Not so much this time around.

Clearly, we knew healthcare was at the top of the batting order; whether it’s reform, replace or repeal. But after that, it was anyone’s guess. Whether it was the Comey drama, playing footsie with Putin, Sean Spicer, and then the saga of the quickly disappearing Mooch, no one could have predicted this level of chaos.

And one of the biggest costs of those distractions to the employer community has been the systemic failure of adequately staffing the administration and giving the regulatory process the attention it deserves. One glaring example is what is happening (or more accurately, not happening) with the regulation regarding CEO pay ratio disclosure promulgated by the Obama-era Securities and Exchange Commission (SEC).

The regulation called for publicly-traded companies to begin submitting various types of pay data to the SEC for publication in 2018. If finalized, not only would retail industry detractors potentially have a new line of attack, but companies would also be giving very sensitive data to the government that could potentially be used against them in a variety of ways. Specifically, the disclosure rule requires public companies to disclose the median of the annual total compensation of all (non-CEO) employees, the total compensation for the CEOs, and the ratio of the two.

Companies are allowed to identify their median employee in a few different ways. They could provide the ratio based on the compensation paid to their full employee population, or they could implement a statistical sampling or another reasonable method. According to the rule, companies can identify the median employee based on any “consistently used compensation measure,” such as tax or payroll records. Companies are allowed to identify the median employee once every three years.  

When President Trump won the election, there was a great deal of optimism within the business community that Congress would intervene or that the SEC would rescind the rule. The U.S. House did, in fact, pass a repeal of the Dodd-Frank Act (the Choice Act), which included a repeal of the regulation. But like a lot of things in the Senate, the momentum has slowed and as of now, it appears unlikely that they will even be able to move the Choice Act.

As a result, they likely will not be repealing the pay ratio provision before the SEC publishing deadline. The SEC, for its part, could even have a hard time delaying the rule. If the one Democrat on the commission decides not to show for a scheduled vote, then the commission, as currently staffed, would lack a quorum. As such, publicly-traded companies should presume the rule and its deadline will stand and comply accordingly.

This is not a welcome development. It is a paperwork/compliance nightmare and it puts the issue of CEO pay and the disparity with regard to hourly workers back on the table where the media will eat it up.

Entry-level employers are particularly vulnerable on this issue, and the data will likely portray employers as exploitative. While the rule only applies to publicly traded companies, the larger income inequality narrative and political conversation will impact all operators.

One additional important point: Last year, the City of Portland passed its own CEO pay disclosure and tax law that is based on the data submitted to the SEC. One glaring problem was a lack of clarity around how franchisees would be handled. Would the owner of a three-unit franchise be considered the CEO, or the CEO of the franchisor? No one on the ground could seem to answer that question at the time. And at the same time, there was such a universal belief that the SEC regulation would ultimately die, no one worked that hard to resolve the situation. So now, that local regulation and the unanswered questions surrounding it become more relevant. We need to remember that the Portland law is in effect and the taxes based on the data submitted to the SEC will start being levied in 2018.

The regulatory process is long and tortuous. While there was a lot of policy by Twitter regarding rolling back Obama-era regulations, with the exception of some meaningful action at the Department of Labor (DOL), there has been relatively little real action.

Entry-level employers could certainly use a little less chaos and a little more governing. Anyone want to make a prediction on that happening?

Editor’s note: The opinions expressed in this column are the author’s and do not necessarily reflect the views of Convenience Store News.

Joe Kefauver is managing partner of Align Public Strategies, a full-service public affairs and creative firm that handles national issues and multi-state strategy for a portfolio of flagship clients including the country’s largest employers, Fortune 100 brands and national associations. For more information, go to AlignPublicStrategies.com.