The 2020 Update emphasized the need for the corporate compliance function to ensure both consistency and fairness not only in monitoring investigations but also in monitoring the resulting discipline. One of the ways the 2020 Update emphasized this was through tracking the investigations and the discipline that may come out of any investigation. One of the challenges companies have is facts and circumstances are always different in every investigation. This makes it sometimes difficult, but if companies treat employees of one country different in terms of discipline, it does create potential gaps in a compliance program. This can then give certain countries a feeling that they can do what they want, without the risk of punishment from corporate headquarters. This is why the DOJ re-emphasized monitoring the investigations and ensuring consistent application of discipline as a critical factor in ensuring an effective compliance program.

The FCPA Resource Guide, 2nd edition, added a new hallmark to the previously titled 10 Hallmarks of an Effective Compliance Program (now it is simply the Hallmarks). The Hallmark added was one which has been around for some time and it is Root Cause Analysis (RCA). It is not new because it was subtly considered in the original FCPA Resource Guide and explicitly discussed since at least the original formulation of the Evaluation of Corporate Compliance Programs in February 2017.

The focus on consistency is both insightful and instructive as a key element of a best practices compliance program. Consistency forms the basis of both institutional justice and institutional fairness. That in turns, facilitates a speak up culture, which is the role of the compliance department to foster.

Three key takeaways:

  1. Consistency is a key part of any compliance program.
  2. Consistency forms the basis of both institutional justice and institutional fairness.
  3. Consistency facilitates a speak up culture.