Retention bonuses under competitor AI pressure

How should employers time retention bonuses during competitor AI pressure?

Use simple vesting and prompt payment timing where possible. Delayed installments can push a retention bonus into Section 409A and create employee-side tax exposure.

The federal center of gravity is I.R.C. Sec. 409A. Once a service provider has a legally binding right in one taxable year to compensation that may be paid in a later taxable year, the arrangement is usually in deferred-compensation territory unless an exception applies. If the plan fails, the employee can be pulled into current income and taxed on an amount equal to 20 percent of the included compensation, plus premium interest.

The usual escape hatch for a cash retention bonus is the short-term-deferral rule in Treasury Regulation section 1.409A-1(b)(4). The regulation measures an applicable 2 1/2 month period ending on the “15th day of the third month” after the year in which the payment is no longer subject to a substantial risk of forfeiture. Inside companies that often gets shortened to the March 15 rule, but the actual rule is about the vesting year and the 2.5-month window, not a generic calendar reminder.

IRS Chief Counsel Advice 201518013 is the clean warning against trying to repair a bad retention agreement after the fact. The executive there had a three-year retention arrangement that paid in installments after vesting. The IRS said the agreement was deferred compensation from inception and that correcting the document during the vesting year did not help, because a failure existed “at any time during a taxable year”. That matters because AI-pressure retention programs tend to be drafted quickly, while 409A is unusually hostile to fix-it-later thinking.

The firm consensus is less about creativity than about constraint. On the tax side, the recurring message is that Section 409A punishes complexity faster than most companies expect. Crowell's summary of CCA 201518013, EisnerAmper's older employment-agreement note, and Jenner & Block's issue-spotter all push toward the same conclusion: the more discretion, installment timing, or delayed cleanup a retention award contains, the more likely it is to stop behaving like a simple bonus and start behaving like a nonqualified deferred compensation plan.

Sources for this answer

Primary law

A.1 26 U.S.C. Sec. 409A(a)(1)(B)(i)(II)

Section 409A(a)(1)(B)(i)(II) defines the interest calculation for deferred compensation that fails to meet the requirements of the statute, specifically applying the underpayment rate plus one percentage point based on when the compensation was first deferred or became free of a substantial risk of forfeiture.

For purposes of clause (i), the interest determined under this clause for any taxable year is the amount of interest at the underpayment rate plus 1 percentage point on the underpayments that would have occurred had the deferred compensation been includible in gross income for the taxable year in which first deferred or, if later, the first taxable year in which such deferred compensation is not subject to a substantial risk of forfeiture.

See 26 U.S.C. Sec. 409A(a)(1)(B)(i)(II).

Commentary

A.2 Barack Ferrazzano Kirschbaum & Nagelberg LLP, Overview of Section 409A

Section 409A imposes strict compliance requirements on nonqualified deferred compensation plans, and failure to adhere to these rules results in significant tax penalties for the service provider.

if a compensation or benefits arrangement is subject to Section 409A, and fails to comply with its rules and regulations, the individual entitled to the compensation or benefits is subject to an additional 20% income tax plus potential interest tax penalties.

See Barack Ferrazzano Kirschbaum & Nagelberg LLP, Overview of Section 409A.

Law-firm commentary

A.3 Crowell & Moring LLP commentary

Under the IRS's position in CCA 201518013, a section 409A violation in a deferred compensation agreement must be corrected prior to the year of vesting to avoid the imposition of the additional 20 percent federal income tax.

The IRS has suggested in the past that an agreement must be corrected before the vesting year in order to avoid income inclusion. This CCA is the first released written statement of the IRS's position.

See Crowell & Moring LLP, 20 Percent Additional Tax Applies to Executive's Retention Bonus.

Commentary

A.4 EisnerAmper, Beware of Section 409A Traps in Employment Agreements

Executive employment agreements must be carefully drafted to comply with Internal Revenue Code section 409A, as noncompliance can result in significant tax penalties for the executive and failure to meet specific regulatory requirements regarding payment timing, definitions, and exemptions.

failure to comply with section 409A results in expensive tax issues not for the employer, but for the executive, including income tax on any amounts deferred under the agreement retroactive to the first year the agreement violated section 409A

See EisnerAmper, Beware of Section 409A Traps in Employment Agreements.

Primary law

A.5 26 C.F.R. Sec. 1.409A-1(b)(4)

Supports the cited proposition. (26 C.F.R. Sec. 1.409A-1(b)(4))

15th day of the third month

See 26 C.F.R. Sec. 1.409A-1(b)(4).

Commentary

A.6 Jenner & Block LLP commentaryPDF

Section 409A of the Internal Revenue Code imposes strict regulatory requirements and significant tax penalties on nonqualified deferred compensation arrangements that fail to comply with its complex rules regarding the timing and structure of payments.

Section 409A imposes a 20 percent excise tax (and other negative tax effects) on any individual benefiting under a nonqualified deferred compensation arrangement that does not comply with Section 409A’s byzantine set of rules.

See Jenner & Block LLP, The New Deferred Compensation Rules: An Issue-Spotters Guide to Tax Code Section 409A.

Commentary

A.7 Taft, 409A Compliance for Deferred Compensation Plans - A Year-Round Endeavor

Compliance with Internal Revenue Code Section 409A is essential to avoid adverse tax consequences, and operational failures must be addressed through specific correction procedures outlined in IRS Notice 2008-113.

Internal Revenue Code Section 409A (409A) imposes complicated rules on deferred compensation plans. Plans that do not follow their terms and the 409A rules can create painful taxable events for participants

See Taft, 409A Compliance for Deferred Compensation Plans - A Year-Round Endeavor.

Primary law

A.8 IRS CCA 201518013PDF

Supports the cited proposition. (IRS CCA 201518013)

at any time during a taxable year

See IRS CCA 201518013.

Can employers use forgivable loans to keep AI talent from leaving?

They can try, but the tax treatment depends on whether the loan is real debt. If repayment exists mostly on paper and forgiveness tracks service, the structure can look like compensation paid early.

Forgivable loans sit on a different edge of the same problem. They promise immediate liquidity while trying to defer tax recognition over time. The issue is whether the instrument is real debt or just compensation paid early. Alvarez & Marsal's summary of TAM 200040004 says the IRS treated a supposed loan as compensation where the employee lacked a genuine cash repayment obligation and the note was effectively satisfied by continued service rather than actual repayment. The more the arrangement looks like third-party debt - promissory note, stated interest at or above AFR, maturity, actual repayment mechanics, perhaps security - the stronger the debt story appears to be. The more forgiveness simply tracks continued employment, the more it could be read as a salary advance.

The outlier structure in the source set is the forgivable loan. Alvarez & Marsal is not a law firm, but its piece is useful precisely because it describes the debt formalities in concrete terms: promissory note, stated interest, fixed maturity, actual repayment mechanics, and a real expectation of repayment. That is less a contrary school of thought than a reminder that some companies still try to buy time with debt forms when straightforward retention cash would trigger immediate tax or state-law limits.

Forgivable loans remain legally plausible and doctrinally unstable at the same time. Perhaps the real line is economic substance: if the employee never truly has to repay in cash, the IRS could continue to view the structure as compensation paid early rather than debt paid later.

Sources for this answer

Commentary

B.1 Alvarez & Marsal, Warning: Employee Loans Could Have Adverse Tax Consequences

To ensure favorable tax treatment and avoid characterization as taxable compensation, employee loans must be structured as bona fide debt obligations with formal documentation, unconditional repayment requirements, and market-rate interest.

The determination whether a loan is considered a bona fide loan is a factual determination, and the presence of all of these characteristics does not guarantee loan status.

See Alvarez & Marsal, Warning: Employee Loans Could Have Adverse Tax Consequences.

Do California and New York limit retention bonuses tied to AI pressure?

Yes. California limits stay-or-pay repayment pressure, and New York can treat objective formula bonuses as wages once they are earned.

State law then determines how much economic pressure a retention arrangement can lawfully exert. California's AB 692 is now the leading statute. Business and Professions Code section 16608 makes it unlawful, for contracts entered on or after January 1, 2026, to include a term that “requires the worker to pay” at separation, resumes collection at separation, or imposes a penalty, fee, or cost when the work relationship ends. The sign-on-bonus carveout is narrow: separate agreement, at least five business days to consult counsel, no interest, prorated repayment, a maximum two-year retention period, and an option to defer receipt until the end of a fully served retention period. Mid-stream retention bonuses do not get that carveout. Labor Code section 926 adds a private action and statutory damages of $5,000 per worker.

California's older mobility statutes make out-of-state drafting workarounds less certain than they once looked. Labor Code section 925 limits mandatory non-California forum and choice-of-law provisions for employees who primarily live and work in California, unless they were individually represented by counsel. Business and Professions Code section 16600.5 then says void restraints remain unenforceable “regardless of where and when the contract was signed”. New York is different but not necessarily more forgiving. In Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680, the Appellate Division treated a formula bonus as wages when it was “vested and mandatory as opposed to discretionary and forfeitable”.

California is where the commentary becomes more interesting. Greenberg Traurig reads AB 692 as a real limit on old retention-bonus habits and says an out-of-state governing law clause is probably no as a workaround for California employees, absent the narrow counsel-negotiation exception in Labor Code section 925. Mayer Brown focuses on the federal tax problem that California may have created. If the state requires a worker to have the option to defer receipt of a sign-on payment, the employer may be handing the worker immediate access to cash and then calling the later election a deferral. Mayer Brown's point is that constructive receipt doctrine is suspicious of exactly that move. Those two views are not really in conflict. They describe a statute that narrows state-law options at the same moment federal tax law narrows the remaining ones.

The New York commentary points the other direction: termination timing can convert what looked like a retention lever into wages litigation. Cohen & Buckmann uses William Mattar to argue that once a bonus is objective, formulaic, and calculable, continued-employment-through-payment language may not save the employer if the employer fires first. Debevoise is writing for a different audience - public companies and compensation committees - but it reaches a similar practical point from the governance side. Large one-time or retention awards no longer read as mere retention plumbing once they are front-loaded, lightly conditioned, or stacked with other executive-pay items; they become disclosure, proxy-advisor, and investor-scrutiny events.

The sharpest unresolved conflict is California's AB 692 deferral option versus federal constructive-receipt and Section 409A timing rules. Mayer Brown identifies the problem directly, but the source set does not surface any IRS safe harbor reconciling the two.
It is still unsettled how far California's stay-or-pay limits travel when the employer, payor, and agreement are elsewhere but the worker sits in California. Labor Code section 925 and Business and Professions Code section 16600.5 point in California's direction, but Greenberg Traurig is careful to describe the issue as still not fully clarified by case law.

Sources for this answer

Primary law

C.1 California Business and Professions Code Sec. 16608(b)(1)(A)

Supports the cited proposition. (California Business and Professions Code Sec. 16608(b)(1)(A))

requires the worker to pay

See California Business and Professions Code Sec. 16608(b)(1)(A).

Primary law

C.2 California Labor Code Sec. 926

California Labor Code Section 926 establishes that contracts violating Business and Professions Code Section 16608 are void, authorizes civil actions for violations, and mandates liability for actual damages, statutory penalties, injunctive relief, and attorney's fees.

A contract or contract term that violates Section 16608 of the Business and Professions Code is void as contrary to public policy only if entered into on or after January 1, 2026.

See California Labor Code Sec. 926.

Commentary

C.3 Greenberg Traurig commentary

California Assembly Bill 692, effective January 1, 2026, imposes strict limitations on repayment obligations for sign-on bonuses and prohibits them entirely for retention bonuses, while establishing private rights of action for non-compliant agreements.

effective Jan. 1, 2026, California Assembly Bill 692 (codified at Business & Professions Code section 16608 and Labor Code section 926) limits an employer’s ability to impose repayment obligations for these upfront sign-on and retention bonuses

See Greenberg Traurig, California Claws Back: New Limits on Stay-or-Pay Contracts Starting Jan. 1, 2026.

Law-firm commentary

C.4 Mayer Brown commentary

California Assembly Bill 692, effective January 1, 2026, prohibits most employment-related repayment and exit-fee provisions by declaring them void as unlawful restraints on trade and providing workers with a private right of action for civil damages.

Assembly Bill (AB) 692 prohibits most employment‑related repayment and “exit‑fee” provisions in agreements that are entered into on or after January 1, 2026.

See Mayer Brown, A Deeper Dive Into California's New Limitations on Stay or Pay Clauses as of January 1, 2026.

Primary law

C.5 California Labor Code Sec. 925

California Labor Code Section 925 prohibits employers from requiring California-based employees to waive their rights to California venue or substantive law in employment contracts, unless the employee is represented by independent legal counsel.

An employer shall not require an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would do either of the following: (1) Require the employee to adjudicate outside of California a claim arising in California.

See California Labor Code Sec. 925.

Primary law

C.6 California Business and Professions Code Sec. 16600.5(a)

Supports the cited proposition. (California Business and Professions Code Sec. 16600.5(a))

regardless of where and when the contract was signed

See California Business and Professions Code Sec. 16600.5(a).

Case law

C.7 Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680

Supports the cited proposition. (Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680)

vested and mandatory as opposed to discretionary and forfeitable

See Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680.

Commentary

C.8 Cohen & Buckmann, P.C. commentary

Under New York law, bonuses that are objectively calculable and nondiscretionary may be considered vested wages that must be paid to an employee upon termination, regardless of contractual provisions requiring continued employment through the payout date.

A bonus tied to objective, formula-based criteria and calculable with reasonable certainty constitutes mandatory rather than discretionary compensation.

See Cohen & Buckmann, P.C., Bonus Season Strategies: Getting Ready for Year-End Payouts.

Law-firm commentary

C.9 Debevoise & Plimpton LLP commentary

Public companies must navigate evolving SEC disclosure requirements, Section 162(m) tax deduction limitations, and proxy advisor policies when designing executive compensation programs for the 2026 season.

Under Item 402 of Regulation S-K, companies must disclose in the “All Other Compensation” column of the Summary Compensation Table the aggregate incremental cost to the company of providing the perk or personal benefit

See Debevoise & Plimpton LLP, 2026 Executive Compensation Reminders for Public Companies.

Commentary

C.10 Association of Corporate Counsel, Executive Compensation and Common Pitfalls in Exec AgreementsPDF

Executive employment agreements must be carefully structured to comply with complex tax regulations, including Section 409A for deferred compensation and Section 280G for change-in-control payments, to avoid significant penalties and adverse tax consequences.

Code section 409A applies to deferred compensation • Strict requirements on time of deferral • Strict requirements on time and form of payment • Compliance in form and operation is key

See Association of Corporate Counsel, Executive Compensation and Common Pitfalls in Exec Agreements.

What happens to AI retention bonuses in M&A or equity packages?

The analysis usually stacks instead of staying separate. Cash retention, equity acceleration, and deal-triggered severance can create Section 409A, Section 280G, and governance issues together.

Longer-duration arrangements add change-in-control and parachute issues. Section 409A allows payment on specified events, including a change in the ownership or effective control of the corporation, but the regulations still require a single fixed time and form of payment rather than event-by-event toggling. Section 280G then asks whether change-in-control compensation reaches the three-times-base-amount threshold for a parachute payment.equals or exceeds an amount equal to 3 times the base amount Retention cash, accelerated equity, and deal-triggered severance therefore stack into one analysis rather than three separate files.

Equity does not automatically simplify the picture either. Discounted options, RSUs that vest well before settlement, and phantom stock can create separate Section 409A exposure rather than solving the cash problem. In practice, AI-retention packages often accumulate legal mass by combination: cash stay bonus, equity acceleration, and deal-triggered payout each look manageable in isolation and less manageable once they are part of one transaction or one executive-compensation story.

M&A-driven edits to multi-year retention awards are another open area. Section 409A and its regulations clearly allow change-in-control payment events, but there is still limited room to rewrite time and form midstream without creating a subsequent-deferral problem, and Section 280G can make the economics worse once the deal closes.

Sources for this answer

Primary law

D.1 26 U.S.C. Sec. 409A(a)(1)(B)(i)(II)

For purposes of clause (i), the interest determined under this clause for any taxable year is the amount of interest at the underpayment rate plus 1 percentage point on the underpayments that would have occurred had the deferred compensation been includible in gross income for the taxable year in which first deferred or, if later, the first taxable year in which such deferred compensation is not subject to a substantial risk of forfeiture.

See 26 U.S.C. Sec. 409A(a)(1)(B)(i)(II).

Primary law

D.2 26 C.F.R. Sec. 1.409A-3

Under 26 C.F.R. § 1.409A-3, nonqualified deferred compensation plans must restrict payments to specific permissible events and are generally prohibited from accelerating the time or schedule of such payments.

The requirements of section 409A(a)(2)(A) are met only if the plan provides that an amount of deferred compensation under the plan may be paid only upon an event or at a time set forth in this paragraph (a)

See 26 C.F.R. Sec. 1.409A-3.

Commentary

D.3 Morrison Cohen LLP, Section 409A Change-in-Control Payment EventsPDF

Nonqualified deferred compensation arrangements governed by Section 409A must strictly adhere to defined permissible change-in-control events and objective, nondiscretionary payment schedules to avoid adverse tax consequences.

The strict rules regarding the time and form of payment of NQDC arrangements limit distributions to six permissible payment events, including the change-in-control events described in this practice note.

See Morrison Cohen LLP, Section 409A Change-in-Control Payment Events.

Law-firm commentary

D.4 Hunton Andrews Kurth, Deferred Compensation Arrangements - Key 409A IssuesPDF

Section 409A of the Internal Revenue Code establishes mandatory regulatory requirements for the taxation, timing of deferral elections, and payment structures of nonqualified deferred compensation plans, with severe tax penalties for noncompliance.

Section 409A is the first time the Internal Revenue Code has provided rules regulating the taxation of nonqualified deferred compensation, which outline the specific requirements for the timing of deferral elections and the designation of the time and form of payment of deferred amounts

See Hunton Andrews Kurth, Deferred Compensation Arrangements - Key 409A Issues.

Primary law

D.5 26 U.S.C. Sec. 280G(b)(2)(A)(ii)

Section 280G(b)(2)(A)(ii) of the Internal Revenue Code excludes certain payments from being classified as parachute payments if they are otherwise treated as reasonable compensation or fall under specific statutory exceptions.

For purposes of clause (ii), payments not treated as parachute payments under paragraph (4)(A), (5), or (6) shall not be taken into account.

See 26 U.S.C. Sec. 280G(b)(2)(A)(ii).

Commentary

D.6 Association of Corporate Counsel, Executive Compensation and Common Pitfalls in Exec AgreementsPDF

Code section 409A applies to deferred compensation • Strict requirements on time of deferral • Strict requirements on time and form of payment • Compliance in form and operation is key

See Association of Corporate Counsel, Executive Compensation and Common Pitfalls in Exec Agreements.

Commentary

D.7 The Wagner Law Group, Taxation of Deferred Compensation: Overview of 409A and 457PDF

Internal Revenue Code Sections 409A and 457 establish complex regulatory frameworks governing the taxation, deferral, and payment timing of nonqualified deferred compensation arrangements.

The American Jobs Protection Act of 2004 added Section 409A to the Code to regulate compensation deferral and payment elections. The new Section 409A rules essentially bar employees from accelerating the payment of deferred compensation.

See The Wagner Law Group, Taxation of Deferred Compensation: Overview of 409A and 457.

Commentary

D.8 Almost 20 Years of Section 409A: Is Your Documentation Still in Sync? | Beneficially Yours

Employers should periodically audit nonqualified deferred compensation plans to ensure administrative practices align with written plan documents, as mismatches under Section 409A can trigger severe tax penalties that are difficult to rectify through simple plan amendments.

Over time, plan administration often drifts from what the written document actually says. And with Code Section 409A’s unforgiving rules, even small mismatches can trigger significant tax implications for the participant

See Almost 20 Years of Section 409A: Is Your Documentation Still in Sync? | Beneficially Yours.

Does mandatory AI use change how companies should structure retention pay?

Yes. Mandatory AI use can intensify retention pressure, but legally durable pay structures usually become simpler as the pressure increases.

AI pressure changes the retention file before it changes doctrine. Public company and founder memos already show the operating shift. Shopify's leaked 2025 memo made AI use a baseline expectation and told teams to hire an AI before a human. Box's AI-first materials describe a move toward a smaller workforce operating with agents, centralized governance, and different output expectations. That produces a familiar economic pattern: broader cost pressure, narrower talent bottlenecks, and more money pointed at the remaining people who can run or supervise the systems.

Once that happens, legally durable retention structures get simpler rather than more sophisticated. A cash award paid promptly after a service condition ends can often stay inside short-term deferral. The same award paid across later years becomes a 409A plan. An upfront payment with a clawback can start to look like a prohibited stay-or-pay clause in California. A formula bonus tied to continued employment through collection or payout can look like wages at termination in New York. The more the payment is asked to function like a non-compete, the more likely it is to be regulated like one.

The federal backdrop does not restore much room. The FTC's nationwide noncompete rule failed, but federal hostility to broad labor-market restraints plainly did not disappear. The agency's April 15, 2026 Rollins order against noncompetes covering more than 18,000 workers is a reminder that case-by-case Section 5 enforcement is still active. That does not turn a retention bonus into a noncompete. It does make economically coercive retention tools harder to defend as the regulatory mood turns against restraints on mobility.

The final consequence is that legal design does not defeat market pricing. Ravio says AI/ML hiring as a share of new hires grew 88% year over year and that AI talent carries a premium across levels. Farient says compensation committees are already being pulled toward AI-linked incentive design and oversight. That means a tenure-only bonus can be perfectly documented and still be economically weak. Competitors paying current salary, current equity, and current responsibility may rationally outrun a future payment whose legal enforceability depends on tax timing, state mobility law, and termination facts.

Sources for this answer

Commentary

E.1 GAI Insights, Shopify CEO Shares AI Memo with Employees

Shopify's internal AI policy mandates AI usage as a core job requirement, integrating AI proficiency into performance evaluations and resource allocation processes.

Shopify’s memo makes AI usage mandatory, not optional “extra credit,” for all employees, including leaders.

See GAI Insights, Shopify CEO Shares AI Memo with Employees.

Commentary

E.2 Box Blog, AI-First Transformation: Box's Principles, Strategy, and Execution Framework

Effective enterprise AI governance requires a model that balances centralized strategic guardrails and specialized technical support with functional ownership to drive transformation without creating bureaucratic bottlenecks.

Box's AI executive sponsorship is led by Olivia Nottebohm, the company’s COO, Ravi Malick, the CIO, and Jessica Swank, Chief People Officer, to represent business, IT and people aspects — all of which are critical.

See Box Blog, AI-First Transformation: Box's Principles, Strategy, and Execution Framework.

Commentary

E.3 Box, Box AI: Acceptable Use Policy & Guiding Principles

Box's Acceptable Use Policy mandates that customers bear sole responsibility for ensuring their use of Box AI complies with legal obligations and prohibits reliance on the platform for automated high-risk decision-making, including legal, financial, or medical advice.

The customer has the sole responsibility to ensure their usage of Box AI is in compliance with their own legal obligations, standards, practices, and internal guiding principles.

See Box, Box AI: Acceptable Use Policy & Guiding Principles.

Primary law

E.4 26 C.F.R. Sec. 1.409A-1(b)(4)

Supports the cited proposition. (26 C.F.R. Sec. 1.409A-1(b)(4))

15th day of the third month

See 26 C.F.R. Sec. 1.409A-1(b)(4).

Primary law

E.5 California Business and Professions Code Sec. 16608(b)(1)(A)

Supports the cited proposition. (California Business and Professions Code Sec. 16608(b)(1)(A))

requires the worker to pay

See California Business and Professions Code Sec. 16608(b)(1)(A).

Case law

E.6 Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680

Supports the cited proposition. (Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680)

vested and mandatory as opposed to discretionary and forfeitable

See Matter of William Mattar, P.C. v. Riley, 2025 NY Slip Op 02680.

Agency guidance

E.7 FTC, FTC Takes Action Against Noncompete Agreements, Securing Protections for Workers

The Federal Trade Commission actively enforces antitrust laws against companies utilizing noncompete agreements that restrict employee mobility and suppress labor-market competition.

The Federal Trade Commission today ordered Rollins, Inc.—one of the largest pest-control companies in the United States—to stop enforcing noncompete agreements against more than 18,000 employees nationwide.

See FTC, FTC Takes Action Against Noncompete Agreements, Securing Protections for Workers.

Commentary

E.8 Ravio, The AI compensation and talent trends shaping the job market in 2026

The rapid adoption of AI in the workplace is driving significant demand for specialized AI talent while simultaneously displacing administrative and entry-level roles, necessitating strategic compensation planning and documented justifications for market premiums.

the proportion of new hires in AI/ML roles grew by 88% this year (compared to the previous 12 months).

See Ravio, The AI compensation and talent trends shaping the job market in 2026.

Commentary

E.9 Farient, The Dawn of AI's Impact on Comp Committees

While there are currently no regulatory mandates requiring the integration of artificial intelligence metrics into executive compensation, compensation committees are increasingly incorporating AI oversight, risk management, and strategic alignment into their governance and incentive design processes.

While no regulations currently mandate linking compensation to AI oversight, the technology’s strategic weight is undeniable.

See Farient, The Dawn of AI's Impact on Comp Committees.

Can cross-border AI retention awards create Section 409A problems?

Yes. U.S. tax rules can follow mobile employees even when a foreign compensation plan was not designed around Section 409A.

Cross-border retention is still easy to misread. The source set suggests that Section 409A can follow U.S. taxpayers working abroad while foreign compensation plans may not have been designed around U.S. deferral rules at all. In an AI talent market that increasingly recruits globally, that mismatch could matter more than it used to.

Sources for this answer

Commentary

F.1 The Tax Adviser, Key cross-border compensation issues

Non-U.S. companies employing individuals in the United States or U.S. taxpayers overseas must navigate complex U.S. tax requirements, including Sec. 409A deferred compensation rules, Sec. 83 equity treatment, Sec. 280G golden parachute provisions, and the taxability of moving expense reimbursements.

non-U.S. companies often do not realize that punitive U.S. tax consequences exist for awards that fail to satisfy, or fit into an exemption to, Sec. 409A rules.

See The Tax Adviser, Key cross-border compensation issues.

Law-firm commentary

F.2 Covington & Burling LLP, The United States - Inbound and Outbound EmployeesPDF

Employers implementing cross-border remote work arrangements must navigate a complex array of legal, tax, and regulatory challenges, including compliance with immigration, tax, and employment laws in both the home and host jurisdictions.

Employers must navigate a complex legal landscape when implementing remote working programs.

See Covington & Burling LLP, The United States - Inbound and Outbound Employees.