Riverwater Partners Employment Clauses Engagement

By Cindy Bohlen

Chief Mindfulness Officer & Analyst, Riverwater Partners

Riverwater Partners, a Responsible Investment RIA based in Milwaukee, WI, is working in collaboration with Meredith Benton, Whistle Stop Capital, and Molly Betournay, Clean Yield Asset Management, and a few other investors, on an engagement campaign with companies to end the use of Forced Arbitration and Non-Disclosure Agreements in the context of employee harassment and discrimination claims. Riverwater chose to participate in this campaign because we believe the cost and effort to end the use of these tools is insignificant compared to the risks associated with their use, which include human capital costs, legal risk, and brand exposure.

In June, Riverwater sent letters to CEOs and Investor Relations of 24 portfolio companies highlighting said risks, stating that Attorneys General from all 50 states have signed a letter calling for the end of mandatory arbitration in sexual harassment cases, and citing examples of high-profile companies that have ended their use. As of August, we have received responses from eight companies, most indicating they do not use Forced Arbitration/Non-Disclosure Agreements at all. A few with union employees stated that negotiated contracts require certain disputes to be determined by arbitration; given that these terms are negotiated by experts on behalf of the employees, we believe this is fair. In all cases, we are encouraging companies to disclose these policies publicly, as investors have begun to focus on the issue.

Riverwater is in the process of following up with companies that have not yet responded. Our goal is to educate them regarding the risks of using Forced Arbitration and Non-Disclosure Agreements, and to encourage them to either disclose publicly if they are not using such tools, or to end use. We will consider further action, including shareholder resolution, if we deem it appropriate. We welcome participation by others who are concerned about this practice. Please feel free to contact Cindy Bohlen of Riverwater at cbohlen@riverwaterllc.com with interest.

Note from SGI: Efforts like this to end mandatory arbitration of sexual harassment claims help to put a stop to the culture of silence that protects perpetrators at the cost of their victims. We salute Cindy for her participation in this important work.

My Visit to South Texas Family Residential Center in Dilley

By Mark Peters

Director of Justice, Peace and Reconciliation, Priests of the Sacred Heart

The August 25 Washington Post ran a story about the South Texas Family Residential Center in Dilley, Texas, the largest of three in the U.S. specifically dedicated to the holding of mothers and children.  Opened to reporters for the first time, the center was described by reporter Maria Sachetti as clean and well-equipped, very different from the images we’ve all seen of kids in pens at the border. 

I can confirm her story – I was there two weeks earlier and saw everything she described:

…a dental office, with a reclining chair and sterile instruments… cafeteria serving hot dogs, lime-cilantro chicken, tortillas and green salad — all you can eat… Kindergartners [singing] “If You’re Happy and You Know It…” access to a wide array of services, including a 24-hour infirmary, a day care, a library with Internet and email access, a beauty salon, a charter school and a canteen.

I’d been asked by SGI to take part in a tour of the Dilley facility and sit in on a dialogue of ICCR members with CoreCivic, the private corporation that runs Dilley and is one of the “big two” in that field, along with GEO Group.  At one time they were in dialogue with GEO, but the company had “paused” that conversation. (In fact the CEO had suggested they sell their shares and leave them alone!

CoreCivic has been a more willing partner, and after the dialogue I sat in on later that afternoon after the tour of the detention facility, the ICCR delegation saw signs for hope that human rights were getting needed attention.  But one has to wonder what an organization like Catholic Charities could do with the money CC is getting to run this camp, whether it’s full or not (surprisingly it never has been and often is way under its 2400 bed capacity).  The director told us he had “no idea” how Customs and Border Patrol and ICE decide who to send and not – mothers have reported an almost “eenie-meenie-minee-moe” approach at the border.

The Post reporter’s story is excellent in my opinion, and I encourage you to read it.  I especially call attention to her explanation of the Flores Agreement and the impact the Administration’s plan to nullify it would have on the length of time families are forced to stay in these camps (in a “vast stretch of scrubland in a tiny former oil-boom town, an hour south of San Antonio”), where the temperatures are often above 100 degrees and people generally don’t leave their air-conditioned pods.

The women who’ve left and were interviewed by Sachetti all agreed that, while “far better than the Border Patrol holding cells or the safe houses they stayed in during their trip through Mexico,” they still considered Dilley a jail.  Most currently stay less than the 20 day Flores limit, but if Flores is negated stays are expected to go to 3 times that and could legally be unlimited.  What will it do to the admittedly good morale (for the circumstances and relative to the trauma they’ve just passed through) we witnessed if that becomes the case.  We need to be telling Congress to keep the Flores Agreement!

I and the others were very surprised by what we saw in Dilley and relieved to know that not every detention facility is as bad as the worst of them (I can only vouch for this one, but I would also have to say that we all felt it was not “staged,” that we were seeing normal life there).  The next day, we heard a group that provides pro bono legal services say that residents were not being allowed to see them without an appointment, which should be their right, but we weren’t able to ask the CoreCivic official about that.  Follow-up is planned.  I’m grateful to SGI and ICCR for the opportunity to participate in this visit and commend the dialogue team for their dogged efforts to ensure that human rights are not trampled.  Perhaps what we saw would not have been that way without the efforts of them and so many others to let government and business know we are watching.

Corporate America Develops a Conscience?

By Frank Sherman

There has been a lot of media coverage this week of the Business Roundtable CEOs new commitment and statement on the purpose of corporations. Leaders of companies including JPMorgan Chase, Apple, Amazon and Walmart have abandon their 40+ year sole focus on shareholders to embrace a “fundamental commitment” to all their stakeholders: putting employees, suppliers and communities on a pedestal that once belonged only to shareholders.

Anand Giridharadas, author of Winners Take All: The Elite Charade of Changing the World, has been an effective critic of the statement.  “I absolutely see the change. It has become socially unacceptable as a company or a rich person not to be doing good. But what many are failing to do is ask: ‘What have I done that may be drowning out any of the do-gooding I’m doing?’ ” (Fortune, Aug 19, 2019). He cites the 2017 tax bill, supported by the Business Roundtable, in which the lion’s share of the benefits ended up in the hands of the top 1%, increasing the income inequality underlying many social problems.

The ‘enlightened’ CEOs are also taking heat from the right. The Wall Street Journal editorial page was quick to criticize (WSJ, Aug 19, 2019)… “A close reading shows there’s less substance here than meets the media spin, but it’s still notable that the CEOs for America’s biggest companies feel the need to distance themselves from their owners. Yet these CEOs are fooling themselves if they think this new rhetoric will buy off Ms. Warren and the socialist left. It may even embolden them by implying that corporate rules that require a focus on achieving value for shareholders are somehow morally insufficient.”

But Steven Pearlstein, Pulitzer Prize-winning columnist for The Washington Post, professor of public affairs at George Mason University, and author of the book Can American Capitalism Survive? has a different take from the BRT statement. His article in the American Prospect five years ago (When Shareholder Capitalism Came to Town, Apr 19, 2014) partly blamed the BRT for corporate America’s sole focus on shareholder value leading to the corruption of capitalism. However, Pealstein was optimistic about the BRT statement. “It’s important because it signals a shift in attitude in norms. That’s already occurring. It’s sort of confirming something that’s happening that’s, I think, the pendulum swinging back in the right direction, after having swung too far in favor of shareholders.” Pealstein met J.P. Morgan Chase’s CEO and chair of the BRT, Jamie Dimon, in his office last year to discuss the growing public distrust of corporations and CEOs.

When asked by PBS host John Yang if this may just be a P.R. gimmick, Pearlstein gave some practical advice that all stakeholders can benefit.  “Yes, it is good for P.R., but if they don’t follow through, if we continue to see companies that say, I’m giving up my American citizenship so that we don’t have to pay U.S. taxes anymore because our shareholders are making us do it; if companies say, we’re going to crush our unions because our shareholders are making us do it; they won’t be able to get away with that anymore.”

It’s up to us to remind these CEOs of their new found conscience!

MCRI merges with SGI Coalition for Responsible Investing

By Barbara Jennings, CSJ

After two years of discussion about the best path forward, the St. Louis-based Midwest Coalition for Responsible Investment (MCRI) merged with Milwaukee-based Seventh Generation Interfaith (SGI) coalition to make both organizations stronger. 

MCRI began in 1977 focusing on the issue of the day:  South African apartheid. Michael Crosby, OFM Cap, the founder of SGI, visited St. Louis to explain the process of shareholder engagement and encouraged the formation of a regional socially responsible investment coalition.  Several Catholic institutions in the area decided to form MCRI. Other connections between St. Louis and Milwaukee:  beer towns, Midwest agriculture, defense industry, and racial disparity. 

MCRI joined the Interfaith Center for Corporate Responsibility shortly after it was formed. This connected us to many Catholic religious’ women and men congregations, as well as to representatives of other faith traditions.  We expanded our tactics beyond the traditional “negative screens” (e.g. no weapons, tobacco, gambling, birth control) to include corporate engagements, proxy voting and shareholder meeting attendance.

MCRI’s first resolution in 1978 asked McDonnell Douglas to build up its commercial business over military contracts which were dependent on foreign policy and regional conflicts. The proposal was presented by Sr. Mary Ann McGivern, SL. From that auspicious beginning, the work of MCRI expanded. By 1980, MCRI had thirteen institutional members. That same year, the coalition sponsored a local conference entitled “Corporate Responsibility: Why the Churches Must Be Involved.”  It was well attended by both treasurers and social justice representatives.       

Under the leadership of Susan Jordan, SSND, MCRI’s issues expanded to include nuclear waste (Union Electric, now Ameren), foreign military sales (General Dynamics, McDonnell Douglas/Boeing), and agricultural pesticides and GMO’s (Monsanto, now Bayer).  Other issues on which we engaged companies on were infant formula in Central America, AIDS medication from the pharmaceutical industry, and labor slavery in various supply chains.   

By 2007, Barbara Jennings, CSJ, who had been on MCRI’s Advisory Committee in the 1990’s, became the Executive Director of MCRI.  The issues at ICCR had grown tremendously, almost too much so that the saying at ICCR meetings was “We never met an issue we didn’t like.”  In 2015, ICCR adopted a human rights lens to all its’ work. Priority issues included climate change, human trafficking / labor rights, water stewardship and food justice.

MCRI continued to work with Ameren concerning their disposal of coal ash. A 2018 resolution received 53% vote, a rare majority for a shareholder resolution!  The coalition worked with Monsanto for several years on water issues. The company now uses low drip and recycling of water in their labs after a 2010 successful withdrawal of a resolution. After many years of engagement with Boeing, the company hired a third party auditor to delve into their supply chain for labor infringements.     

So, the work will go on….and with a more supportive business atmosphere than in 1977.   What has changed?   A greater awareness of the risks posed by climate change? Recognition of the liability posed by pollution?  Understanding that companies can outsource manufacturing but not the responsibility associated with it? The internet and social media together with increased societal expectations has placed more responsibility on corporations to account for their environmental and social impacts.

Each of the nine MCRI members (SSND, GSPMNA, CSJ, CPPS, OSU, SJ, SM, CSJ Congregational Center, and JAG Capital Management) will continue in corporate engagements as part of SGI’s coalition. I ask that you please stay active to bring the faith-based investor voice to corporate board rooms.

As for me, I have joined the SGI Board of Directors and will continue to remain active in this work. I was proud to be part of this journey and thank you for your support. 

The long and winding road

by Pat Zerega

Senior Director Shareholder Advocacy, Mercy Investment Services

This weekend, we saw Rocketman, the story of Elton John. It brought back memories of so many songs we grew up with.  For some reason I kept thinking of the song the long and winding road as a parallel to the story (even though it was written by the Beatles, Elton John performed it on occasion). Part of the reason it came to mind is that the song reflects how I feel about the private prison work and GEO specifically. It might be helpful to review some of the history that got us to today.

Around 2003, John Celichowski, O.F.M., Cap. and Valerie Heinonen, O.S.U., began approaching the private prison companies. At that point, their stock was considered ‘penny stock’ with few members at ICCR owning GEO, CCA or Cornell. The first resolution oat GEO received 3.2% and a similar resolution brought CCA to the table without going to vote. Fr. John moved on to leadership in the community and passed the mantle to Fr. Mike Crosby.  A variety of approaches including lobbying and human rights policy development continued with GEO and CoreCivic (formerly Corrections Corporation of America) through 2011. Dialogues were often contentious (my participation was through the Lutherans), and at one point the CEO of GEO wondered why we didn’t just “sell the stock and leave them alone.” We continued to focus concern with the people in custody.

In 2011, a resolution calling for a human rights policy was filed. At the same time, the Jesuit Social Research Center had obtained a grant to work with private prisons around human rights and training, so the Jesuits began to lead both dialogues. This grant brought in prison experts to help lead the way and both companies developed polices and entered into dialogue.  

We all know writing a policy is not the be all and end all of work. We need to see that the policy doesn’t sit on the shelf but is implemented, training occurring and the culture changing. Shareholders expected to be able to find that out through dialogue and increased transparency in reporting on the prison companies’ websites.

Since that time, the dialogues have focused on several issues including medical care and segregation from the general population, but shareholders felt like we were not seeing the real impact hoped for with a human rights policy. Abuse allegations remained high, and news coverage of these events continued. In the spring of 2018, we began to see many reports concerning immigration detention conditions in private prisons. ICCR hosted letters to both private prison companies with more 50 signatures asking for the prisons not to become involved with government detention contracts.

CoreCivic answered the letter and continued to engage in a meaningful way, this spring presented its first ESG report. They are working on other ways to be transparent on human rights issues.

In the late summer of 2018, GEO, however, put a ‘pause’ on dialogue. This was new to me. I’ve had companies stall or not answer letters, but to actually write and say they didn’t want to talk was new ground.

Our group was frustrated and decided to file a resolution in the fall of 2018 asking for a report (that was indicated in GEO’s own policy) concerning how implementation of the human rights policy. Many shareholders joined the group of Jesuits and Mercy Investment Services addressing this issue, and in November the resolution was filed.

As expected, the resolution was challenged, but the SEC denied the no action thus, agreeing it had to be on the ballot. Shareholders filed a proxy memo indicating reasons why it should be left on, alerted proxy advisors of the resolution, and the week before the AGM learned that both proxy advisory firms were supporting the resolution. As that information became public, we also received an unexpected email from GEO, telling us they would no longer oppose the resolution and filed such a statement with the SEC. The company never quite supported the resolution, nor changed the proxy on their site, nor put the SEC statement on their site, nor did they reach out to talk with us. So, we prepared to present at the AGM (a virtual-only AGM, but that too is for another day), and garnered nearly 88% of the vote.

(Photo by Pat Zerega, Door County Wisconsin 2016)

The story of course does not end there. Shareholders have met since then to discuss next steps and have sent a letter requesting to return to the dialogue table with all interested parties and explain what we are looking for in the requested human rights report. Thus far, there is no answer to that request, but we know there is always another twist in the road ahead.

Climate Change is now a Climate Crisis

By Frank Sherman

Recently, we took time to reflect on another eventful engagement season and to chart the strategic direction for the coming year.

Looking back at the 2019 engagement season and more than one-hundred climate engagements by ICCR members, we observe:

  • In a notable exception, the electricity generation sector is at a decarbonization tipping point driven by cheaper renewable energy, growing industrial and public demand, and changing public opinion. Securitization laws, distributed energy resources (e.g. rooftop solar) and community solar projects are growing in popularity. The “electrification of everything” shows promise of demand growth, energy savings and environmental sustainability. A growing number of utility companies (nine, according to NRDC) have followed Xcel’s lead by committing to carbon-neutral electricity production by 2050 or sooner.
  • In the face of regulatory rollbacks, natural gas production and distribution companies are committing to voluntary methane leakage reduction targets to salvage the ‘bridge-fuel’ story. With 6000 mid- and small-scale producers, the majors are now advocating for a stronger regulatory regime! Investors have been successful in tying support for meaningful regulation to reputational risk.
  • As investors shifted from demanding scenario assessments to Paris-compliant business plans, U.S. oil & gas companies continued to defend their business-as-usual business model while their European counterparts broke rank. A BP supported climate resolution obtained a 99+% vote while Shell agreed to set GHG reduction targets for their products as well as their operations. In contrast, CA100+ investors at Exxon Mobil recommended voting against the Board after the company omitted their GHG reduction target proposal.
  • With noted exceptions (Wells Fargo and Goldman), large financial companies are starting to assess climate risk in their portfolios. Mid-cap companies were slower to respond to our letter campaign, largely it seems, due to limited capacity to conduct broad risk assessment. Investors will connect them with tools they can use to do a straightforward climate footprint analysis.
  • Political spending and lobbying resolution votes, several of which emphasized climate change, increased to 31%.
  • Engagements calling for science based (GHG reduction) targets made slow progress in contrast to the scientific community call for more urgent action.

Impacting the climate science and changing political landscape, 2018 was the wettest year on record while wildfires in California resulted in the first climate change bankruptcy of Pacific Gas and Electric. Global carbon emissions reached a record, and the U.S. power sector reversed its’ multi-year decline.  The IPCC special report warned that countries’ pledges to reduce their emissions are not in line with limiting global warming to 1.5°C. Some are responding to the crisis – 80 countries are planning to increase their climate pledges ahead of schedule. The UK is the first member of the G7 to legislate net zero emissions, joining Finland and Costa Rica.

The 4th U.S. National Climate Assessment Report starkly warns of risks to the U.S. economy while the Trump administration’s environmental rollbacks are poised to increase GHG emissions significantly. Public opinion is finally shifting with over 70% of Americans saying climate change is a reality, with most believing human activity is primarily responsible. Republican millennials support a carbon tax 7-to-1 with 85% stating that the Republican position on climate change is hurting the party. The Midterm elections flipped the House of Representatives and 7 state governorships to Democrats. Twenty-one states have now joined the U.S. Climate Alliance committed to the Paris Climate Agreement. Four states (CA, WA, HI, NM) and Puerto Rico have targeted 100% clean energy by 2050 or sooner, with nine additional states (IL, MA, MI, MN, MS, NC, NY, PA, WI) proposing similar legislation. The Green New Deal resolution changed the conversation on Capitol Hill and the Climate Action Now Act put the House on record as supporting the Paris Accord.    

Financial markets are not immune to this crisis. Munich Re predicts climate change will price regions out of insurance. The broad acceptance of the TCFD guidelines increases pressure on companies to improve disclosure.

Considering the broader investor landscape and NGO campaigns, the CA100+ global initiative focused on large emitters and led by large asset managers, pension funds, and sovereign funds. Some ICCR members participate in the CA100+ teams while others continue parallel engagements to reinforce the message. Still others are shifting focus to mid-cap companies. We believe that more coordination is needed to increase effectiveness.

Efforts to make methane emissions reduction targets the norm have been limited to the oil & gas majors and larger natural gas producers. The EPA’s proposed rollback of the New Source Performance Standards regulating oil and gas emissions will further erode the regulatory floor, especially as the EPA now proposes to deregulate methane. We look forward to publication of an EDF study on methane measurement and mitigation and Union of Concerned Scientists has formed a working group to study CCS.  

Efforts towards a Just Transition have born fruit as investors and companies have a growing awareness of the unintended, negative consequences that decarbonization has on people. We made a good start with last October’s investor statement, representing $3.7 trillion in assets, and the CA100+ framework, which includes just transition questions; however, most companies lack the policies and practices to address these issues. Addressing the needs of employees, customers and local communities will accelerate transition rather than deter it.

Recalling Fr. Mike Crosby’s prophetic statement, “We are at a Kairos moment,” we look forward to developing with our allies a new strategy statement regarding future engagement of the oil & gas sector to help investors differentiate between fossil fuel companies making progress and those protecting business-as-usual models. Rollout will be stepwise with more guidance forthcoming. Finally, alongside our allies, we have reviewed a draft climate change principles which reflect an increased urgency and stepped up action.

Finally, let us turn to our 2020 engagement strategy. Given our progress in recent years within the electric utility sector, we expect to expand engagements further into mid-cap companies and push for net-zero carbon targets. We will collaborate with NGO’s and other partners to engage the state utility commissions and give input on the Green New Deal. ICCR is planning a multi-stakeholder Roundtable in December to discuss the challenges of decarbonization and promote a just transition.

Investors engaging the financial sector are promoting a shift from simply assessing climate change risk to their own operations to assessing the climate-related risk they facilitate through their lending and underwriting. Coordinating with the Climate Safe Lending Initiative, they plan to engage the top five U.S. banks and some regional banks in 2020 on climate risk. Investors will ask banks to follow the TCFD recommendations, complete a climate impact assessment, pledge no new fossil fuel investments, and ultimately, decarbonize their portfolio (Banking on Climate Change: Fossil Fuel Finance Report Card 2019). Planned for early September, an investor brief and webinar will educate interested investors. As well, we will ask smaller banks to join the Platform Carbon Accounting Framework to calculate their carbon footprint.

Our methane work will continue to promote best practices in measurement and management to minimize methane leakage. We plan to engage companies on including their “non-operated assets” (i.e. joint ventures) in their methane targets, and step up engagement of distributors and retailers to source “sustainably produced” natural gas. At the same time, we recognize that natural gas can no longer be viewed as a “bridge fuel” to clean energy and agree that no new gas power plants can be justified given the climate crisis. On the other hand, replacing industrial and residential uses of natural gas remains a challenge.

It is clear that we recognize the increased urgency and need to step-up our demands. Within ICCR, we reflect this by the change to our Program name from Climate Change to Climate Crisis. This can no longer be considered a gradual change. We are in crisis mode so we need to respond differently!

The surprisingly powerful voice of shareholders

By Mark Peters, Director of Justice, Peace and Reconciliation, Priests of the Sacred Heart, US Province, Member, SGI Board

How did I, someone who’s never been much into shopping and stores and has gotten his clothes from Kohl’s since junior high, find myself addressing the CEO, Board and a smattering of shareholders of Macy’s, Inc. in Cincinnati last month? It’s all thanks to a Capuchin priest who had the foresight to see how important corporations would become in the 21st Century.

Fr. Mike Crosby, OFM Cap, died two years ago, but he lives on in the work of Seventh Generation Interfaith Coalition for Responsible Investment. Fr. Mike recruited me back in 2014 and coached me through my first shareholder resolution, which was with TJX, the company that owns TJMaxx, Homegoods and Marshalls. We got 3% of the vote, a victory because you needed that much to bring it back the next year. That time we got under the next benchmark and that was the end of that campaign, though not of our continuing dialogue with TJX. Votes under 5% are not unusual in this line of work! We often plant seeds that don’t bear immediate fruit.

This year Chris Cox, Associate Director of SGI (along with Executive Director Frank Sherman, who was mentored by Mike), directed our resolution with Macy’s, requesting a report on their process for ensuring that no vendor is engaged in forced labor (their byzantine supply chains are the reason their clothes are so cheap and the company is so profitable). Chris consulted with experts in the drafting of the resolution and provided me with lots of material for the dialogue that the company agreed to after we filed. But ultimately the company would not agree to undertake the report, so we did not withdraw, as is sometimes done when a company does make a good faith beginning.

That’s what brought me to Cincinnati on May 17. Someone needed to be present to “move” the proposal, as the Board had made known it’s opposition to it and it would be dropped if no one spoke for it. However, Macy’s was stingier than most with the time they allot speakers, and we were told we had only one minute. So 800 miles driving and a hotel stay, all for the sake of 90 seconds (try and keep me to 60!) of opportunity to sway the votes of a mere handful of shareholders present at the (to me) surprisingly sparsely-attended AGM (annual general meeting) — all of whom, as it turned out, had apparently already voted their shares prior to the meeting.  So I was basically just talking to the board.

But in the end the shareholders spoke to them as well, because our proposal received 40% of the vote!  Chris and I were shocked, but very pleasantly so, as this ensures us a continued seat at the table with the company, and the very real chance of a win next year. Apparently investors are starting to care about human trafficking!

As often happens (and as someone else has done for us with this same proposal at the TJX AGM this week outside of Boston), we’d been asked to move another group’s proposal, this one on transparency on political contributions. I read their statement as well, and that proposal actually received 53% of the vote. I spoke to the Corporate Counsel afterward, and she said the company would likely implement the proposal because of that showing.

A number of other SGI members have had successful outings this proxy season, especially those working on climate change-related resolutions, which for most investors is now clearly a strong value. Now begins the work of readying ourselves for the next season!

Mark’s statement at the annual shareholder meeting can be found here.