Wal-Mart: Have any executives been penalized for recent scandals?

May 15, 2014: 1:24 PM ET

Investors push retailer to disclose when it docks executive pay.

By Paul Hodgson

Wal-Mart scandals show need for the company to take stand against misdeeds.

Wal-Mart scandals show need for the company to take stand against misdeeds.

FORTUNE -- Wal-Mart's earnings, revenue, and comparable store sales all missed expectations, as the company made clear in an announcement early this morning. One factor was the "the unseasonably cold and disruptive weather." The retailer's annual meeting also risks being disruptive. An investor coalition has filed a resolution calling on Wal-Mart (WMT) to disclose whether it recouped any pay from employees implicated in the numerous scandals that have beset the company in recent months.

The resolution comes not only as a result of bribery allegations at its operations in Mexico, China, and Brazil, which have already cost the company over $439 million, but also because of current investigations by the U.S. Department of Justice and the SEC as well as several investor lawsuits. In addition, the company was recently fined over $110 million after pleading guilty to charges of illegally dumping hazardous waste in California and Missouri. Finally, the National Labor Relations Board also issued a complaint against Wal-Mart that alleged it illegally threatened, monitored, punished, and fired employees who engaged in protests calling for better pay and working conditions.

Someone must have been responsible, investors reasonably infer, so someone should be held accountable. The investor coalition includes: UAW Retiree Medical Benefits Trust, Illinois State Board of Investment, Connecticut Retirement Plans and Trust Funds, Amalgamated Bank LongView Funds, and F&C Management Ltd. The resolution will come up for vote on June 6 at the annual meeting.

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The resolution has been successful elsewhere. Over the past 18 months, a number of companies including Northrop Grumman (NOC), Omnicare (OCR), United Technologies (UTX), and Halliburton (HAL) have adopted policies to disclose money they recoup from employees, also known as a clawback. Halliburton, for example, notes that: "The [clawback] policy also provides that ... we will disclose in our proxy statement the circumstances of any recoupment arising under the policy ... There was no recoupment under the policy in 2013."

Scott Zdrazil, director of corporate governance at Amalgamated Bank, one of the sponsors of the proposal, said, in an email, "clawback policies tend to be popular but investors rarely see companies use them despite costly misconduct." One exception, he noted, was: "the recent JP Morgan clawbacks for traders involved in the London Whale affair." As Zdrazil noted, the Walton family owns a majority of Wal-Mart's shares -- 50.56% and, he added, "the company is opposing the resolution" despite its acceptance elsewhere in the corporate world. "However, we anticipate a strong level of support from outside shareholders." It is hoped that on this occasion Wal-Mart will not -- as it has done in the past -- ignore the wishes of a majority of its outside investors.

Wal-Mart's record on such things is poorer than most. Earlier this month, Wal-Mart's proxy statement was released amid much fanfare that new compliance objectives it had introduced as a result of the scandals had the potential to reduce or even eliminate executives' annual cash bonuses if they did not achieve satisfactory progress against targets.

The result? Progress against compliance targets was deemed satisfactory, and bonuses were neither reduced nor eliminated.

So, apart from the alleged violation of workers' rights, the bribery, the workplace safety and other allegations, the product recall issues, and the numerous other concerns that have led major pension funds, including the massive Dutch investor PGGM, to announce that they will no longer invest in the firm -- apart from all this -- what was so good about Wal-Mart's compliance?

According to the proxy objectives, they included: "anti-corruption, anti-money laundering, health and wellness compliance, environmental compliance, health and safety compliance, labor and employment compliance, and licensing and permits."

More: Why Wal-Mart can afford to give its workers a 50% raise

Management made quarterly reports to the audit committee about progress against these objectives and, at the end of the year, the committee "determined that, in its qualitative judgment, adequate progress had been achieved in implementing the Fiscal 2014 Compliance Objectives ..."

Why wasn't that a surprise?

Because for years -- owing to its poor record on diversity -- Wal-Mart has had a similar arrangement but based on diversity targets. In other words, if diversity targets aren't met, bonuses will be reduced. One of the targets requires a number of diverse candidates to be placed in specified positions within the executives' oversight. The others are "good faith" targets. The proxy describes these: "In order to satisfy the good faith efforts component of this program, each NEO [named executive officer] must actively sponsor at least two associates and must also participate in at least two diversity-related events."

Guess what? Wal-Mart's chief diversity officer, as far as I can tell, has certified the achievement of the diversity objectives every year since they were introduced. But how challenging are these? Sponsor two associates and participate in a couple of diversity-related events? How about ensuring that no associate is paid less than an equivalent associate on the basis of gender, race, and sexuality? How about ensuring that all associates have the same chance to be promoted regardless of gender, race, and sexuality? These are hard, measurable targets that would be much more effective in measuring progress against workforce diversity objectives than attending a couple of events.

If the difficulty of the new objectives related to recouping employee pay is on a par with the existing diversity objectives, it is hardly a surprise that they were met. The company should be applauded for improving its compliance, but targets must be challenging. And what about accountability for the past?

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