Lest business owners think they might not be held responsible for decisions made about stock valuations for employee stock ownership plans, no less a person than Phyllis Borzi, assistant secretary of labor for employee benefits security, blogged about it. She firmly fixed that responsibility on business owners to be sure that company stock purchased for ESOPs is valued properly.
With approximately 6,800 companies having an ESOP, Borzi said that while the ESOP's advisor or valuation expert was responsible for valuing the stock correctly, business owners are not off the hook. And, she warned, their mistakes can be very expensive.
Just since 2010, said Borzi, the Department of Labor has recovered "more than $241 million for ESOP violations, most of which involved improper valuations." Citing a $4 million repayment by fiduciaries in one instance last year and a $5.25 million repayment this year, Borzi drove home the point that being responsible for an ESOP, and then allowing it to buy stock at more than fair market value, is not just unwise but illegal.
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In the second settlement, Borzi said, the DOL laid out a set of guidelines for appraisal so that "all employers can … ensure they're making wise and prudent decisions."
Despite the complications of the valuation process, she said, there are some steps business owners can follow to stay legal.
First, when choosing someone to advise on the price of stock, "(m)ake sure your advice comes from a trustworthy source who would not be influenced by conflicts of interest."
Next, she said, employers are responsible for providing the most current and accurate information to the valuation advisor so that the advisor can properly do his job.
Finally, employers should "check and double-check" not just the advice they receive on valuation, but all the information in the report. They should look for consistency and accuracy, as well as being wary of "assumptions about growth projections, financial statements, business risks and other factors that might influence stock value."
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