The week in GRC: SEC proposes tougher insider trading rules and EEOC says Covid-19 cases may be covered by anti-discrimination law

Dec 17, 2021
This week’s governance, compliance and risk-management stories from around the web

The Wall Street Journal reported that Facebook faces more calls from shareholders to address harm on its platforms and corporate governance at the company, now known as Meta Platforms. Shareholders including the New York State Common Retirement Fund and Illinois State Treasurer are among an investor group that collectively filed eight shareholder proposals for consideration at the company’s AGM.

The proposals include calls for board oversight of efforts to reduce harmful content, an assessment of the risk of the company’s metaverse efforts and a review of the social media company’s audit and risk committee, according to the Investor Alliance for Human Rights, an initiative from the Interfaith Center on Corporate Responsibility. Members of the same group last year submitted six proposals that were defeated by shareholders, including a call for an independent board chair.

A Meta spokesperson said the company values its investors’ views and engages with them regularly. ‘We understand the responsibility that comes with operating a global platform where we must address some of the most complex issues impacting society and the internet at large,’ he said in a statement. ‘We have every commercial and moral incentive to try to give the maximum number of people as much of a positive experience as possible on Facebook.’

– According to CNBC, an investor group led by Trillium Asset Management is urging Starbucks to respect the workers who voted successfully to organize a union at one local cafe in Buffalo, New York. Signatories to a letter include New York City comptroller Scott Stringer, the Northwest Coalition For Responsible Investment, the Sustainable Advisors Alliance and more. Trillium holds about $48 mn worth of Starbucks shares.

‘We are writing to urge the company to accept the results of the December 2021 election and proceed expeditiously and in good faith according to the results,’ the letter states. ‘As investors, we believe Starbucks should abide by international standards and best practices and its own words about engaging in good faith with workers to maintain positive labor relations. Effective human capital management is a key performance indicator that a growing number of investors prioritize.’

Starbucks declined to comment on the group’s remarks.

CNN reported that, according to a new report, as climate change increases sea levels, fuels more extreme rainfall and supercharges hurricanes, US businesses are set to collectively lose millions of days of operation in the coming years due to flood-related damages. A new analysis by First Street Foundation, a non-profit research and technology group that assesses flood risks, and Arup, a commercial engineering firm, found that in 30 years damage costs will reach $16.9 bn and the days lost will climb to 4 mn.

– The WSJ reported that Kroger is cutting some Covid-19 benefits for unvaccinated employees. The grocery chain told employees that it will no longer provide two weeks of paid emergency leave for unvaccinated employees who contract Covid-19, unless local jurisdictions require otherwise. Kroger will also add a $50 monthly surcharge to company health plans for unvaccinated managers and other non-union employees, according to a memo. Both policies are effective from January 1, the memo said.

Kroger, one of the biggest employers in the US with almost half a million full-time and part-time employees, is tightening pandemic-related policies for workers as US companies face continued uncertainty over federal vaccination mandates. Rules issued by the Occupational Safety and Health Administration in November require employers with 100 or more workers to ensure employees are vaccinated or take weekly Covid-19 tests by January 4. It is uncertain whether those rules will take effect, having been targeted by lawsuits across the country.

A Kroger spokesperson said the company is modifying policies to encourage safe behavior as it prepares to navigate the next phase of the pandemic.

– According to Reuters, French fashion house Chanel named Leena Nair, a Unilever executive, as its new global CEO. Nair’s career at Unilever has spanned 30 years, most recently as the chief of human resources and a member of the company’s executive committee. She follows US businesswoman Maureen Chiquet, who came from a fashion background and was CEO of Chanel for nine years until early 2016. She has not been replaced until now.

Reuters reported that Singapore Exchange (SGX) will start requiring companies to provide climate-related reporting as well as disclosures on board diversity from next year. All issuers must provide climate reporting on a comply-or-explain basis in their sustainability reports from the financial year starting 2022. Climate reporting will become mandatory for companies in the finance, agriculture, food, forest products and energy industries from the financial year 2023. Issuers in the materials, buildings and transportation industries will have to comply from 2024.

‘Decision-makers want climate information when they allocate assets, extend financing and price risks. These factors make climate reporting most urgent for industries with the biggest impact,’ said Tan Boon Gin, CEO of SGX’s regulatory arm.

From next year, companies will also have to set a board diversity policy that addresses aspects such gender, skill and experience.

– The SEC proposed amendments to Rule 10b5-1 that it said are designed to enhance disclosure requirements and investor protections against insider trading. The proposal includes updates to Rule 10b5-1(c), which provides an affirmative defense to insider trading for parties that frequently have access to material non-public information, including corporate officers, directors and issuers.

‘Over the past two decades, we’ve heard concerns about and seen gaps in Rule 10b5-1 – gaps that today’s proposals would help fill,’ said SEC chair Gary Gensler in a statement.

The proposed amendments would update the requirements for the affirmative defense, including imposing a cooling off period before trading could commence under a plan, prohibiting overlapping trading plans and limiting single-trade plans to one trading plan per 12-month period. In addition, the proposed rules would require directors and officers to supply written certifications that they are not aware of any material non-public information when they enter into the plans and expand the existing good faith requirement for trading under Rule 10b5-1 plans.

The amendments would also elicit more comprehensive disclosure about companies’ policies and procedures related to insider trading and their practices around the timing of options grants and the release of material non-public information.

– The Equal Employment Opportunity Commission (EEOC) said in new guidance that US workers with severe cases of Covid-19 may be covered by a law prohibiting disability discrimination in the workplace, while milder cases would not qualify, Reuters reported. The EEOC said Covid-19 cases that persist for more than a few weeks, and impairments caused by the illness, can be considered ‘disabilities’ under the Americans with Disabilities Act. But the agency cautioned that whether the law applies to individual workers must be determined on a case-by-case basis.

CNN reported that Apple will delay bringing its employees back to the office until a ‘yet to be determined’ date, while giving all of its corporate and retail employees $1,000 to buy equipment for their home offices. The move comes amid a rise in Covid-19 cases and concerns about the spread of the Omicron variant.

Earlier this week, Apple reinstated a mask mandate at all of its US stores and is reportedly also closing some of them because of a surge in cases. Several other major companies have pushed back their reopening dates multiple times as uncertainty around the pandemic continues.

– The SEC proposed rules intended to prevent fraud, manipulation and deception in connection with security-based swaps, to prevent undue influence over the chief compliance officer of security-based swap dealers and major security-based swap participants and to require any person with a large security-based swap position to publicly report certain information related to the position.


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