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The Employee Ownership Update

Corey Rosen

July 14, 2006

(Corey Rosen)

Seventh Circuit Court of Appeals Pillories ESOPs

In Summers v. State Street Bank & Trust Co., No. 05-4005 (7th. Cir., June 28, 2006), the U.S. Court of Appeals for the Seventh Circuit upheld a lower court's ruling that State Street Bank did not violate its fiduciary duties by failing to sell UAL (the corporate parent of United Airlines) stock in the ESOP sooner than it ultimately did. The court concluded the plaintiffs did not make a compelling case about when the sale would have occurred; indeed, the court concluded that to make that guess would be to try to outsmart the market.

More significant, however, was Judge Richard Posner's written opinion for the court. Posner is a highly respected and influential jurist, famous for his "law and economics" approach to decisions. His comments on ESOPs were scathing: "The time may have come to rethink the concept of an ESOP, a seemingly inefficient method of wealth accumulation by employees because of the underdiversification to which it conduces." Posner said that there is no reason for taxpayers to encourage employee ownership; if it is a good idea, the market should make it happen. Moreover, he wrote, the idea that the evidence that ownership would improve corporate performance was "weak and makes no theoretical sense."

Of course, these policy comments did not prompt the court to read the law differently, and they are directed more at Congress than other courts. They do, however, provide fodder for critics of employee ownership. The full decision is at the Seventh Circuit's site (search for "Summers").

Eight Percent of Employees Had Options in 2005

According to the National Compensation Survey by the Bureau of Labor Statistics, 8% of the work force (about 10 million employees) have "access" to stock options, defined as the right to buy stock at a fixed price for a fixed period of time. This includes 12% of white collar, 6% of blue collar, and 2% of service employees. Twelve percent of those making more than $15 per hour have options, while 6% making less than $15 per hour do. Only 4% of employees at establishments with fewer than 100 employees have options, while 14% of those in larger companies do. This appears to be the first time the survey has included this measure.

The findings are somewhat ambiguous in that it is not clear if respondents would have interpreted participation in an employee stock purchase plan as an option. The data are in line with data from the General Social Survey in 2002 and indicate relatively little movement in the total number of people having options through 2005. That could change, of course, as more companies react to new accounting rules.

Retirement Plan Reform Might Actually Get Out of Conference Committee

After missing several self-imposed deadlines, conference committee leaders say that legislation to reform retirement plans might actually get reported back to the House and Senate for a final vote very soon. No details have emerged yet on what provisions of special interest to employee ownership companies will be included (these issues include diversification options for company stock in public company 401(k) plans and KSOPs, shortening the maximum allowable vesting period, and making permanent the increased allocation limits passed in 2001). It is still uncertain whether the compromise can be passed by the two houses and signed by the president this year.

Employee Ownership Companies Encouraged to Apply for Best Small and Medium-Sized Companies to Work for List

We encourage employee ownership companies with between 50 and 999 employees to apply for the Great Place to Work Institute's "50 Best Small and Medium-Sized Companies to Work for in America" list. This is the same organization that puts out the "100 Best Companies" list. Employee ownership companies always do well in these ratings, and it certainly helps advance employee ownership to have lots of companies win. It also is great for a company's recruitment and retention, of course. There is an application fee of $975 for companies with fewer than 251 employeesor $1,250 for larger employers. Employees fill out a 15-minute survey and there is a management interview. Companies get a feedback sheet on survey results benchmarked against the companies that make the list. For more information, go here.

NCEO Members Get 10% Discount on S Corporation Conference

The Employee-Owned S Corporations of America (ESCA) will be holding its annual meeting and fall lobby day September 20-21 in Washington, D.C. ESCA and the NCEO have partnered on a number of projects. For details on the meeting, go to the ESCA Web site at To arrange the discount, call ESCA with your registration.

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