How Financial Services and Credit Unions Can Navigate Risks When Structuring Employee Bonus Plans

Takeaways

• Prioritize compliance: Ensure bonus plans meet state and federal labor and tax laws, properly classify bonuses, and comply with overtime and disclosure requirements.
• Define terms clearly: Establish eligibility, calculation methods, earning conditions, and payout structures in writing to promote transparency and reduce disputes.
• Use clawback provisions strategically: Protect the organization by reclaiming bonuses when earning conditions are not met, while complying with state restrictions on wage deductions.

Related link

• Fact Sheet #56C: Bonuses under the Fair Labor Standards Act (FLSA)

Article

Bonus plans are a cornerstone of total compensation and help retain top talent and drive productivity in the financial services industry. By linking bonuses directly to measurable goals such as growth, production, and efficiency, employers can motivate employees to contribute to organizational success.

Employers can strengthen these plans by prioritizing compliance, especially given the complex incentive structures and strict regulations in this sector.

Ensure Compliance

Many states, including California, have strict labor laws regulating bonus pay that seek to ensure fair compensation and prevent employers from using bonuses to circumvent wage laws. Federal laws must also be considered. For example, non-discretionary bonuses (those based on established criteria such as performance metrics) must be included in overtime pay calculations. See Fact Sheet #56C: Bonuses under the Fair Labor Standards Act (FLSA).

Employers can consider minimizing legal risks by classifying bonuses correctly and complying with payment and disclosure requirements.

Clear Terms

Having clear terms in bonus plans is essential, especially for financial services employers, who often have complex plans. Well-drafted plans should:

• Include specific eligibility criteria to define scope and application.
• Include a clear methodology for calculating bonuses to ensure transparency and prevent disputes.
• Clearly describe earning conditions and the timing and frequency of bonus payments (unambiguous and objective payment terms are particularly important to avoid inadvertent adverse tax consequences).

Clawback Provisions

Clawback provisions are not just for addressing poor performance or bad behavior; they play a crucial role in encouraging employee loyalty and retention in the financial services industry. These provisions allow organizations to reclaim bonuses if certain conditions are not met.

For example, an employee may receive a sign-on bonus at the beginning of employment subject to the condition that they remain employed with the company for a certain time period. A well-drafted clawback provision could allow the employer to reclaim that bonus if the employee leaves before that period ends.

Clawback provisions must be clearly outlined in the bonus plan or any employment contract to be enforceable. In some states, employers cannot deduct from wages already earned, but they can reclaim advanced commissions or bonuses if the conditions for earning an advanced payment are not met. Therefore, any bonus payment subject to clawback should include clear criteria on when the bonus is earned. The provision also should specify that an advanced payment is not the same as an earned payment. This distinction between advanced payments and earned payments enables employers to mitigate risks associated with early termination of employment and ensures paid bonuses are truly earned based on sustained performance.

Other Considerations

When drafting bonus plans, financial services employers should provide information to employees on the consequences if those criteria are not (such as no bonus will be earned or paid under the plan). Employers should also establish internal dispute resolution procedures governing potential allegations of improper bonus calculation for quicker and less costly resolutions.

Drafting and structuring effective, legally compliant bonus plans require careful consideration of various factors. Aligning them with organizational goals and values can motivate employees, build customer trust and satisfaction, and mitigate risks.

Employers should regularly review and adapt bonus plans to meet the evolving needs of the organization and its employees, as well as the ever-changing legal and regulatory landscape of the financial services industry. The considerations outlined are broadly applicable to many employers; contact your Jackson Lewis Financial Services attorney to develop a customized bonus plan strategy for your organization.