Employee Participation in Switzerland

Employee participation has emerged as a highly successful strategy for organizational empowerment and innovation, motivating employees to work for the success of the company in which they have a vested interest. From equity sharing to decision-making involvement, employee participation encompasses various forms, each with its own features and associated tax implications. In this blog, we outline the different forms of employee participation, with a focus on equity participation. We discuss the tax implications and explore the advantages and disadvantages of employee participation in general.

What is employee participation?

Employee participation is generally understood as a contractual arrangement where an employee shares in the assets and/or decision-making processes of their employing company. This involvement extends from sharing in the financial prosperity of the company to actively engaging in strategic discussions and governance structures.

While the term “employee participation” is most often associated with employee equity participation, this is in fact only one example of it, and there are various other forms of employee participation. In Switzerland, employee participation is not merely viewed as a means of empowering workers but also as a strategy to enhance organizational performance and foster innovation.

Forms of employee participation

Employee participation can be categorized into material and immaterial participation. Material participation involves direct financial involvement, such as equity and profit-sharing schemes, while immaterial participation focuses on decision-making processes, voting rights, and information sharing.

We primarily focus on employee equity participation in this article.

Types of employee equity participation

There are various types of equity participation that can be provided to employees

• Employee shares: These are direct ownership shares granted to employees, often entailing voting rights and dividends, thereby aligning the interests of employees with those of shareholders and the company. Free employee shares can be disposed of by the employee without restriction whereas blocked shares cannot be sold during a specified blocking period.
• Options: Employees are granted the right to purchase company shares at a predetermined price within a specified timeframe, providing them with a potential avenue for future financial gain. Employee options are also divided into free and blocked options.  
• Share entitlements: Entitlements provide employees with the opportunity to obtain a specified quantity of shares either free of charge or at preferential conditions later. The time between is known as the vesting period, and the employee must satisfy certain conditions at the time of share transfer (vesting), such as still being employed by the same employer.
• Virtual employee participation: Virtual shares (also called “phantom shares”) represent a hypothetical ownership stake in the company, with their value tied to the performance of actual company shares. They often also entitle the employee to dividend payouts. This enables employees to benefit from the company’s success without assuming direct ownership of company equity. Virtual participation has many advantages, such as tax optimization, reduced transfer costs, and lower administrative burden.
• Stock appreciation rights: Employees receive cash payments based on the appreciation of company stock over a predetermined period, offering them a direct financial incentive tied to the company’s performance.

Distinguishing between real and false employee participation

When it comes to material employee participation, we can distinguish between two basic types: real and false employee participation.

Real employee participation means that the employee shares in actual equity capital of the company. This can take the form of direct employee share participation, or indirectly via options or entitlements to purchase shares under preferential conditions.

False employee participation is when the employee never actually receives a real share in the equity but is instead promised a cash benefit that is tied to the company’s performance. In essence, false employee participation represents an equity-linked incentive scheme where the employee benefits from the increase in value of company shares without ever directly owning the underlying equity. These can take the form of virtual stocks, stock appreciation rights, and various types of co-investments. False shareholdings are considered mere entitlements from a tax perspective until they are realized. (Art. 17a DBG)

What are the tax implications of employee participation?

The tax implications of employee participation require careful consideration and understanding of the relevant tax laws. The tax treatment of employee participation is primarily outlined in Art. 17b and 17c of the Federal Direct Tax Law (DBG)

Employee shares are typically given to employees either on preferential terms (e.g., discounted price) or free of charge. This we refer to as the “selling price” to the employee (in the case of free shares, the selling price is effectively zero). The difference between the actual market price of the share and the discounted selling price to the employee represents a taxable benefit. This amount forms part of the employee’s earned income and therefore incurs income tax.

It is important to keep in mind that there can be various nuances and exceptions to the tax treatment of employee participation schemes. It depends on factors such as the type of scheme, the value of benefits received, and the duration of participation, as well as individual cases that require different treatment.

Here we outline the general tax rules that apply to employee equity participation:

Tax on employee shares

Direct employee share participation is taxed immediately when the shares are given or sold to the employee. The amount that is taxable as income tax is the difference between the actual market value of the shares and the selling price to the employee. (Art. 17b Para. 1 DBG)

A blocking period on employee shares reduces the market value for tax purposes at a discount rate of 6 percent per annum during the blocking period, with a maximum blocking period of ten years. (Art. 17b Para. 2 DBG)

Once employee shares are given to employees, they become private assets, and their subsequent sale would therefore result in a tax-free capital gain or capital loss.

Taxation of employee options

We can also distinguish between free-listed options and blocked/unlisted options. Free-listed employee options are taxable immediately, with the taxable benefit calculated as the difference between the market value and the agreed lower selling price at the exercise date. (Art. 17b Para. 1 DBG)

Monetary benefits derived from blocked or unlisted employee options are only taxed when they are exercised or sold. The taxable income is equal to the difference between the market value of the share and the exercise price. (Art. 17b Para. 3 DBG)

Taxation of entitlements

The monetary benefit from an entitlement to purchase employee shares is only taxed at the time of vesting. The taxable income equates to the difference between the market value of the shares and the entitled purchase price at the vesting date.

Tax on income from false employee participation

The monetary benefits derived from all forms of false employee participation, such as virtual stocks, stock appreciation rights, etc., are taxed at the time they are received. (Art. 17c DBG)

What are the advantages and disadvantages of employee participation?

Advantages of employee participation

Employee participation schemes offer many benefits for the employer and employee alike:

1. Increased employee motivation and morale: When employees feel that they have a stake in the company’s profits, their motivation and commitment to their work tend to increase significantly.
2. Alignment of incentives: Enabling employees to participate in the company’s success, both in terms of equity ownership and decision-making processes, helps to align the incentives of the employees and employer. The company becomes one cohesive team where everyone is working towards the same goals.
3. Enhanced transparency and trust: Employee participation fosters transparency in decision-making processes, information sharing, and financial outcomes, which, in turn, cultivates trust between employees and management.
4. Job satisfaction: Employees who actively participate in decision-making processes often exhibit higher levels of job satisfaction due to feeling a greater sense of control over their work environment.
5. Better employee retention: Companies that offer meaningful opportunities for employee equity participation are more likely to retain top talent, as employees develop a stronger sense of loyalty and commitment to the organization. Instruments such as share entitlements and options, as well as blocking periods on shares, motivate employees to stay with the company to reap the future rewards of equity.
6. Improved liquidity: Employee equity participation increases the company’s equity base, thereby improving its liquidity levels.
7. Tax savings: If structured correctly, employee participation can be a more tax efficient way to compensate employees than ordinary salary payouts and benefits in kind. It can optimize taxes for both the employer and employee.

Disadvantages of employee participation

While employee participation is usually a win-win for both the employer and employees, there can also be some downsides:

1. Slower decision-making: Participation schemes which involve employees in decision-making processes may lead to delays, as reaching a consensus among various stakeholders can take time. It can also dilute the owners’ decision-making power when employees share in the decision process.
2. Implementation costs: Implementing employee participation mechanisms, especially those involving equity schemes, can be financially burdensome for organizations in terms of both time and resources.
3. Potential conflicts of interest: Employee participation may sometimes result in conflicts of interest between employees and management, particularly when their goals do not align.
4. Complexity: Employee participation schemes can be complex to administer, especially for multinational organizations operating in different legal and regulatory environments. Various legal and tax issues need to be factored in.
5. Risk of information leakage: In organizations where sensitive information is shared as part of employee participation schemes, there is a risk of information leakage.