Companies have said the payments are meant to help them retain qualified executives through the recession and bankruptcy.
But critics counter that the money would be better spent on rank-and-file employees. "It makes me angry because they are not taking care of the people who are actually making the money," said Liz Marin, who worked at Toys R Us when it filed for bankruptcy and is now an organiser in training at United for Respect, a nonprofit organization that seeks to help retail workers. Toys R Us paid bonuses to executives before its bankruptcy.
Hold on, why are these CEOs still employed?
Chief executives who lead companies into bankruptcy are at risk of losing their jobs. Geisha Williams left the Pacific Gas & Electric Co., the giant California utility, in January 2019, just before the company filed for bankruptcy protection, for example.
But other corporate boards, which hire the chief executive and set compensation for senior officers, seem to be showing more grace toward the boss. In many cases, the executives could do little to prevent the crushing fall off in business that occurred when the pandemic and lockdowns stopped people going into stores, eating out and taking trips. The drop in the oil price earlier this year was unusually large, walloping many energy companies, though some, like Chesapeake, were already burdened with large debts.
Can't a bankruptcy judge prevent companies from handing out big bonuses?
Certain outlays that a company makes just before bankruptcy — for instance, payments to suppliers — are at risk of being clawed back. But the bonus payments typically don't fall into that category, legal scholars say.
Typically, a company in bankruptcy court has to get a judge's approval before doing just about anything of importance, especially spending millions of dollars. If a chief executive gets a new compensation package during bankruptcy, a judge would have to decide whether the compensation is justified after hearing from creditors, shareholders and other groups. But this can be a drawn out and expensive process — a big reason companies pay bonuses before bankruptcy.
Why are the CEOs getting cash?
In normal times, a large portion of executive compensation is paid out in stock-based awards that top officers earn over time. But the stock of a bankrupt company is most likely going to be wiped out or be worth little once a company resolves its bankruptcy or, in extreme cases, sells off its assets and goes out of business.
As a result, boards have quickly changed how top officers get paid, giving them cash bonuses instead of stock-based awards. But paying cash upfront can be a windfall for chief executives at a time when the livelihood of employees are under threat.
"The companies are creating certainty for their CEOs at a time of the greatest uncertainty for the employee base and the company in general," said Brett Miller, head of data solutions for the responsible-investment arm of Institutional Shareholder Services, which advises investors on corporate governance issues.
How big are these bonuses compared to what executives earned before?
Some companies point out that their cash bonuses are smaller than the incentive-linked compensation previously awarded to executives. Chesapeake said in a filing that its chief executive, Robert D. Lawler, was eligible for a cash bonus 3 percent smaller than the US$13.5 million ($20.7 million) at which his 2019 variable compensation was valued. Soltau of J.C. Penney got a US$4.5 million ($6.9 million) cash bonus before the retailer declared bankruptcy, much lower than the US$8.2 million ($12.6 million) at which her 2019 incentive-based awards were initially valued.
But some stock awards had slumped in value, as share prices of troubled companies plummeted, even before the pandemic took hold. Put another way, the cash bonuses may have enabled the executives to recover pay that they had most likely already lost, possibly for good.
Some companies don't even try to argue that executive pay was cut. At US$6.4 million ($9.8 million), the cash bonus paid to Whiting Petroleum's chief executive, Bradley J. Holly, is larger than the US$5.5 million ($8.4 million) at which the company valued his total compensation for 2019.
And of course the bonuses are far higher than what regular employees earn. Soltau's was many times the US$11,482 ($17,676) the retailer's median employee, a part-time worker, earned during J.C. Penney's 2019 fiscal year, according to a securities filing.
Are troubled companies linking bonuses to goals in any way?
The cash bonuses have also led to the concealing, loosening and removal of the tools companies normally use to tie pay to performance, which many critics contend were already too weak. Companies still operate when seeking protection under Chapter 11 of the bankruptcy code. And, in theory, boards could require chief executives to hit sales targets or achieve other goals.
And in some cases, a few strings remain. Soltau has to repay a fifth of her cash bonus if she fails to achieve certain performance goals, and Lawler has to repay half of his. But J.C. Penney and Chesapeake did not disclose the goals in their securities filings and declined to answer questions about them.
Hertz and Whiting, the oil and gas company, did not tie cash bonuses to performance goals at all. Whiting and Holly didn't respond to requests from comment, but the company said in a securities filing that the new bonuses "eliminate any potential misalignment of interests that would likely arise if existing performance metrics were retained and/or new performance metrics were established at a volatile and uncertain time."
Could lawmakers do anything about these bonuses?
This is not the first time that executive pay at troubled companies has prompted an outcry. Congress passed a law in 2005 aimed at curbing retention bonuses paid during bankruptcy. Under the law, companies are allowed to pay incentive-based bonuses, but the legal cost of constructing such payments and getting them approved in bankruptcy court soared after 2005, according to research by Jared Ellias, a professor at the University of California's Hastings College of the Law.
Of course, Congress could change bankruptcy law so that compensation payments made before the filing could be clawed back, Ellias said. In addition, lawmakers could make it easier for creditors to pursue claims against executives after the bankruptcy. "This doesn't feel right," he said of the recent large bonuses, "and it doesn't instil public confidence in the bankruptcy system."
Written by: Peter Eavis
Photographs by: Chang W. Lee
© 2020 THE NEW YORK TIMES
