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Executive Compensation Policies

Why Have a Written Policy to Review the Compensation of Nonprofit Executives?

One answer is because charitable nonprofits always should be able to justify that the compensation received by the executive director/CEO and other staff is reasonable, and not excessive. The practice of having a written policy and following it to review compensation levels helps ensure that the nonprofit is meeting not only the expectations of the IRS, but also the expectations of donors and the public, who expect that their donations are being put to prudent use by the charitable organization. A related goal of a compensation policy is to ensure that your nonprofit is paying ENOUGH to attract and retain the most highly qualified and talented employees.

Legal Background: The IRS Form 990 asks charitable nonprofits about the process used to approve the compensation of the executive director/CEO (and certain other key employees): "Did the process for determining compensation of the following persons include a review and approval by independent persons, comparability data, and contemporaneous substantiation of the deliberation and decision?" (Form 990, Section VI, Part B, line 15) Nonprofits filing the Form 990 must describe the process on Schedule O.

Ensuring that the board has approved "reasonable and not excessive" compensation for the executive director/CEO is one of the fiduciary responsibilities of every nonprofit board. Boards that engage in an annual process of reviewing and approving the compensation of the executive director/CEO (and certain highly paid "key" employees as defined by the IRS) and that document this process in the minutes of board meeting(s), will be protecting their nonprofit (and themselves). An annual review also ensures that the nonprofit is acting in a transparent manner because through the process the full board will be aware how much the executive director/CEO is being paid by the nonprofit. Having a robust conflict of interests policy is another important aspect of ensuring fair and reasonable compensation.

What is "reasonable" compensation according to the IRS?

Defining what is "reasonable" requires a comparison. Protect your nonprofit and its board members from potential penalties by following the IRS 3-step process below:  As described by the IRS in the Form 990 and instructions to the Form 990, the review process must include three elements: (1) review by an independent body (such as a compensation committee or the executive committee, as long as no one on the review body is employed by the nonprofit); (2) use of "comparability data," such as salary surveys, that provide data from nonprofits of similar mission focus, budget size, and geographic region, and (3) documentation (usually through minutes of the meeting) of the board's consideration and approval of the compensation. Sample policy. (Source: Section 4958 of the Internal Revenue Code and Treasury Regulation section of 53.4958-6 and The IRS Report on Exempt Organizations Executive Compensation Compliance Project Parts I and II.)

  • Compensation includes salary and benefits, such as insurance, a car, housing allowance, or other fringe benefits, that should be included in the calculation of total annual compensation. See instructions to IRS Form 990, pages 31-32.
  • During the process of board approval of the compensation of the executive director/CEO it is essential to have comparable data in order to comply with the expectations for good governance reflected on the Form 990 (see Part VI, Section B, line 15). One method is to obtain compensation surveys or studies from outside compensation consultants for this purpose. The Internal Revenue Service will look to the independence of any compensation consultant used, and the quality of any study, survey, or other data, used to establish executive compensation.
  • Comparable data is compensation data from "similarly qualified," "functionally comparable," and similarly situated nonprofits (in the same or a nearby geographic area, of similar budget size, and in a similiar or the same sub-sector).
  • Example: it would not be comparable to compare the compensation of a CEO of a large urban hospital or university to the CEO of a rural day care center.

Practice Tip

The process boards should use to review comparability data and approve the compensation and benefits of the executive director/CEO is explained in more detail in the instructions to the IRS Form 990 (see pages 23-34, specifically the explanation for Line 15).

The instructions to Form 990 include a glossary of terms and a table that shows precisely how and where to report the many types of "other compensation" that should be included in total compensation.

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