There are numerous reasons to put some serious work into your compliance policies and procedures. They are certainly a first line of defense when the government comes knocking. The 2020 Update made clear that “Any well-designed compliance program entails policies and procedures that give both content and effect to ethical norms and that address and aim to reduce risks identified by the company as part of its risk assessment process.” This statement made clear that the regulators will take a strong view against a company that does not have well thought out and articulated policies and procedures against bribery and corruption; all of which are systematically reviewed and updated. Moreover, having policies written out and signed by employees provides what some consider the most vital layer of communication and acts as an internal control. Together with a signed acknowledgement, these documents can serve as evidentiary support if a future issue arises. In other words, the “Document, Document, and Document” mantra applies just as strongly to policies and procedures in anti-corruption compliance.
The specific written policies and procedures required for a best practices compliance program are well known and long established. According to the 2020 FCPA Resources Guide, some of the risks companies should keep in mind include the nature and extent of transactions with foreign governments (including payments to foreign officials); use of third parties; gifts, travel, and entertainment expenses; charitable and political donations; and facilitating and expediting payments. Policies help form the basis of expectations for standards of conduct in your company. Procedures are the documents that implement these standards of conduct.
The 2020 FCPA Resource Guide ends its section on policies with the following, “Regardless of the specific policies and procedures implemented, these standards should apply to personnel at all levels of the company.” It is important that compliance policies and procedures are applied fairly and consistently across the organization. Institutional fairness demands that if compliance policies and procedures are not applied consistently, there is a greater chance that an employee dismissed for breaching a policy could successfully claim he or she was unfairly terminated. Moreover, inconsistent application of your policies and procedures will destroy the credibility of your compliance program. This last point cannot be over-emphasized. If an employee is going to be terminated for fudging their expense accounts in Brazil, you had best make sure that same conduct lands your top producer in the U.S. with the same quality of discipline.
Three key takeaways:
- Written compliance policies and procedures, together the Code of Conduct, form the backbone of your compliance program.
- The DOJ and SEC expect a well-thought out and articulated set of compliance policies and procedures and that they be adequately communicated throughout your organization.
- Institutional fairness for the application of policies and procedures demands consistent application across the globe.