Following a Contentious 2021 Proxy Season, 2022 May Be Even More Challenging

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Feb 15, 2022, 09:00 ET

NEW YORK, Feb. 15, 2022 /PRNewswire/ -- The 2021 proxy season was unprecedented in the number of shareholder proposals on environmental and social issues that came to a vote—and the level of support they received. But the 2022 proxy season promises to be even more challenging for corporations, according to a new analysis by The Conference Board.

The Conference Board produced the study with ESG analytics firm, ESGAUGE, in collaboration with Russell Reynolds Associates and Rutgers University's Center for Corporate Law and Governance.

The report warns of an increasing risk of collision between companies and shareholders, especially on lobbying (including climate-related lobbying) and the use of corporate funds for direct and indirect political contributions. Shareholders are submitting proposals focused on whether companies' political activities are consistent with their stated positions on climate change and social issues, and the proposals in these areas are likely to go to a vote and to receive high levels of support.

In addition, companies can expect a possible further erosion in shareholder support for the election of their directors, as investors are using their votes against directors to express dissatisfaction on areas such as board diversity and ESG oversight, and, at smaller companies, with governance practices that are inconsistent with best practices at large companies.

The main report provides an overview of the key areas that promise to be the focus of investor attention in 2022. The Briefs provide findings and insights for what's ahead in the following areas:

Brief 1: Environmental & Social Proposals (E&S) in General
Brief 2: Human Capital Management (HCM) Proposals
Brief 3: Environmental Proposals
Brief 4: Corporate Political Activity Proposals
Brief 5: Governance Proposals
Brief 6: Company-Sponsored Proposals

The insights for the 2022 proxy season are based on a review of shareholder proposals submitted by proponents at Russell 3000 companies between January through June of 2021, as well as discussions with governance professionals at ESG Center Member companies. Insights from the new analysis include:

1) Environmental & Social Proposals in General

The 2022 Proxy Season: What to Expect

Expect more environmental and social (E&S) shareholder proposals to be submitted, to come to a vote, and to receive greater support.

Fueled by a rise in "S" proposals on topics such as diversity and corporate purpose, the number of E&S proposals increased significantly during the 2021 proxy season (i.e., the first half of 2021, when ~90 percent of US public companies held their annual shareholder meeting).
During that period, shareholders filed 348 E&S proposals and voted on 158 of them, compared to 314 filed and 151 voted proposals in the same period in 2020.
E&S proposals received unprecedented support in the 2021 proxy season, with some proposals receiving majority support for the first time. Support for E&S (including HCM proposals) averaged 32 percent, compared with 28 percent in 2020.

Shareholders will likely stake out and hold firm to their positions on ESG reporting proposals. Negotiating the withdrawal of a proposal will likely be hardest to achieve on topics including lobbying, say-on-climate, gender/racial pay gaps, and racial equity/civil rights audits (included in the human rights category of proposals in the chart below).

Shareholder proposals on these E&S topics were the most likely to come to a vote in the 2021 proxy season.

"Directors should be prepared for more issues to go to a vote in the 2022 proxy season," said Merel Spierings, a Researcher at The Conference Board ESG Center and author of the report. "Boards should judge success during this proxy season based on whether the company has maintained constructive, ongoing dialogues with their major investors. This is more important than any vote on a precatory shareholder proposal."

2) Human Capital Management Proposals

The 2022 Proxy Season: What to Expect

Sustained investor focus on racial, gender, economic, and health equality means companies should expect a continued push on HCM topics, with a strong focus on diversity and disclosure.

Among the 101 HCM proposals in the 2021 proxy season, 77 were related to diversity.
Companies and shareholder proponents were often able to negotiate the withdrawal of proposals on EEO-1 data, as many companies found that the benefits of disclosing (or promising to disclose) information on their workforce's gender, race, ethnicity, and job tier makeup outweighed the risks.
Proposals on EEO-1 data disclosure that came to a vote received the highest average support (69 percent) of any E&S proposals last year.

Shareholder proposals on racial equity/civil rights audits may emerge as an even bigger issue in 2022, as they often went to a vote in 2021 and may be poised to receive even greater support in 2022, given investors' focus on diversity.

Eight racial equity/civil rights audit proposals were filed and voted on in the 2021 proxy season. These proposals received a relatively high level of average support (32 percent).
This topic is subject to more proxy advisory and investor scrutiny, as some have codified their approach to this issue in their voting guidelines.

"Both CEOs and boards can get ahead of the curve on HCM concerns. A good start entails clarifying and codifying the board's role as it pertains to HCM—and ensuring the board demonstrates its own commitment in this area," said Rusty O'Kelley, co-lead of the Russell Reynolds Associates Board and CEO Advisory Practice in the Americas. "For instance, they should commit to long-term director succession planning that prioritizes director skill sets and capabilities while at the same time enhancing board diversity. Boards will need sufficient lead time to identify, recruit, and onboard directors with the appropriate diversity of thought, experience, and background."

"Keep an eye on racial equity/civil rights audit proposals in the 2022 proxy season," said Justus O'Brien, co-lead of the Russell Reynolds Associates Board and CEO Advisory Practice in the Americas. "In the year ahead, investors may see these proposals as a way to gauge the success of a firm's diversity, equity and inclusion practices. This may be the case, especially, for companies that made commitments following the death of George Floyd."

3) Environmental Proposals

The 2022 Proxy Season: What to Expect

With climate change front and center on the SEC's and investors' agendas, companies in all industries—not just those in carbon-intensive sectors—should expect more specific shareholder proposals on climate.

In the 2021 proxy season, 76 percent of filed and 82 percent of all voted environmental proposals focused on climate. That is an increase from 2020, when climate was the focus of 65 percent of filed and 63 percent of voted environmental proposals.
The say-on-climate proposal with the most support in the 2021 proxy season was at Charter Communications (37 percent). In January 2022, a proposal that Costco adopt greenhouse gas emissions reduction targets for its full value chain came to a vote, receiving 67 percent support.

Companies should be prepared to augment their climate-related activities, commitments, and disclosures.

Companies were less able to negotiate a withdrawal of environmental proposals in the 2021 proxy season than in 2020.
Achieving compromise was especially elusive on say-on-climate proposals, with four out of five coming to a vote.

"In the 2022 proxy season, in addition to a focus on climate, CEOs and their boards can expect a sustained push on broader environmental topics, including water use, plastic pollution, and deforestation," said Umesh Chandra Tiwari, Executive Director of ESGAUGE. "Proposals on plastic pollution and environmental (other than climate-related) reporting received majority support for the first time."

4) Proposals on Corporate Political Activity

The 2022 Proxy Season: What to Expect

Expect a collision between companies and both shareholder activists and the broader shareholder base in three areas: political contributions, climate-related lobbying, and traditional lobbying. Investors are increasingly calling out companies for actual or perceived tension between their political activity and stated positions on E&S issues.

Overall, support for shareholder proposals on corporate political activity reached record levels (36 percent in the 2020 proxy season to 42 percent in the 2021 proxy season).
Of the more than 20 different topics covered by E&S shareholder proposals in the 2021 proxy season, proposals on climate-related lobbying attracted the second-highest level of average support—at 61 percent, up from 42 percent in 2020.
Achieving compromise on proposals relating to corporate political activity was more difficult than on most other topics. For example, just 15 percent of traditional lobbying proposals were withdrawn before coming to a vote.

"To address investor concerns in the 2022 proxy season, boards and senior management should be familiar with how their lobbying and both corporate and PAC contributions align with stated positions on issues. Doing so will help prepare companies to engage with shareholders—and may identify areas where companies can better align their public policy positions with their corporate citizenship positions," said Paul Washington, Executive Director at The Conference Board ESG Center. "Companies should also strive to keep their political activity as straightforward as possible. The more complex the corporate political activity, the more difficult it may be to manage reputational risk. This is why some companies may choose policy over politics, deciding to limit—or avoid engaging in—political contributions."

5) Governance Proposals

The 2022 Proxy Season: What to Expect

Governance proposals remain the most contentious between shareholders and companies. Proposals—including those on supermajority vote requirements, written consent rights, the ability to call special shareholder meetings, and majority voting—attract high levels of support and are typically the most challenging to negotiate compromise that leads to the withdrawal of the proposal.

In the 2021 proxy season, support for governance proposals averaged 40 percent, versus 34 percent during the same period in 2020.
In addition, more governance proposals received majority support compared to the same examined period last year. Of those that came to a vote, 40 (or 18 percent) received majority support, versus 32 (or 13 percent) in 2020.
219 out of the 284 (77 percent) filed governance proposals were brought to a vote in the first half of 2021. That contrasts sharply with the 158 out of the 348 (45 percent) E&S proposals that came to a vote.
All proposals filed on director nominee qualifications, dual-class structure, and board size came to a vote, as well as 27 out of the 36 proxy access proposals.

Small and medium-sized companies can expect most shareholder proposals to focus on governance issues. Larger companies, however, can expect most of their proposals to focus on E&S issues.

In the first half of 2021, small and mid-sized companies received more governance proposals than other proposal types, indicating such companies aren't meeting some investor expectations in traditional governance areas.

"Governance proposals are no longer a concern for large companies only. CEOs and boards of small and mid-sized companies are learning that their practices are being increasingly scrutinized by the investor community," said Professor Matteo Gatti at the Rutgers Center for Corporate Law and Governance. "Now the ball is in these companies' courts: By removing wedge issues, they are less likely to be exposed not only to shareholder proposals but also shareholder activism with a big 'A,' aimed at changing the board and/or the strategic direction of the company."

6) Company-Sponsored Proposals

The 2022 Proxy Season: What to Expect

Companies should be on the alert for a further erosion in shareholder support in director elections.

Average support levels in director elections continued to decline in 2021. Support dropped from 98 percent of votes cast in 2018 to 94.8 percent in 2020 and further down to 94.6 percent in 2021.
Moreover, the number of directors failing to receive majority support more than doubled in recent years, from 27 in 2018 to 68 in 2021.
Contributing to this diminished support are growing concerns over a lack of board diversity and ESG oversight, and, at smaller companies, concerns about governance practices that are inconsistent with best practices at large companies.

Companies—the largest ones, especially—can expect continued shareholder scrutiny for their executive compensation practices.

In the 2021 proxy season, 57 companies (or three percent) failed to receive majority support, compared to 47 companies (or two percent) in the 2020 proxy season.
Companies with an annual revenue of $50 billion and over received the lowest level of support for their say-on-pay proposals.
Only 48 percent of such large companies received at least 90 percent support, 10 percent failed to reach at least 70 percent, and 18 percent failed to receive majority support.
The level of total executive compensation for the largest companies, as well as concerns about how companies addressed performance share units during the COVID-19 pandemic, caused heightened investor scrutiny at those companies.

About The Conference Board
The Conference Board is the member-driven think tank that delivers trusted insights for what's ahead. Founded in 1916, we are a non-partisan, not-for-profit entity holding 501 (c) (3) tax-exempt status in the United States. www.conference-board.org

About The Conference Board ESG Center
The Conference Board ESG Center serves as a resource, platform, and partner to help Member companies address their priorities in corporate governance, sustainability, and citizenship.
www.conference-board.org/ESG

About ESGAUGE
ESGAUGE is a data mining and analytics firm uniquely designed for the corporate practitioner and the professional service firm seeking customized information on U.S. public companies. It focuses on disclosure of environmental, social, and governance (ESG) practices such as executive and director compensation, board practices, CEO and NEO profiles, proxy voting and shareholder activism, and CSR/sustainability disclosure. Our clients include business corporations, asset management firms, compensation consultants, law firms, accounting and audit firms, and investment companies. We also partner on research projects with think tanks, academic institutions, and the media. www.esgauge.com

About Russell Reynolds Associates
Russell Reynolds Associates is a global leadership advisory and search firm. Our 520+ consultants in 47 offices work with public, private and nonprofit organizations across all industries and regions. We help our clients build teams of transformational leaders who can meet today's challenges and anticipate the digital, economic and political trends that are reshaping the global business environment. From helping boards with their structure, culture and effectiveness to identifying, assessing and defining the best leadership for organizations, our teams bring their decades of expertise to help clients address their most complex leadership issues. We exist to improve the way the world is led. www.russellreynolds.com

About the Rutgers Center for Corporate Law and Governance
The Rutgers Center for Corporate Law and Governance is a project of the Rutgers University School of Law, located in Camden and Newark, New Jersey. The Center is an interdisciplinary forum for research, analysis, and discussion of current issues in corporate law and governance. The Center serves as a resource for students, faculty, alumni, and the business and nonprofit communities. Its objectives are to identify and promote best corporate law and governance practices and law reform, and to build bridges between Rutgers Law School, the business and nonprofit communities, government officials, and other Rutgers University units. For more information, visit https://cclg.rutgers.edu/

SOURCE The Conference Board