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Incentivizing Compliance

In today’s business landscape, fostering a culture of ethics and compliance is more crucial than ever. It not only ensures legal adherence but also promotes trust, integrity, and long-term success. One powerful tool in achieving this cultural shift is the strategic use of incentives. In this blog post, we will explore the significance of incentivizing ethical behavior within organizations, the role of human resources (HR) in designing effective incentive structures, and how data-driven insights can drive a culture of compliance and integrity.

The Department of Justice’s 2023 ECCP underscored the importance of incentives and rewards in promoting ethical conduct. It asks companies to consider the implications of their incentives and rewards on compliance and ethical behavior. Furthermore, it encourages organizations to provide specific examples of actions taken, such as promotions or awards denied, due to compliance and ethical considerations. This guidance highlights the significance of incentives in driving a culture of ethics and compliance.

When it comes to incentivizing ethics and compliance, the first thought that often comes to mind is financial rewards. While these can indeed send a strong message about the importance of compliance, it’s important to recognize that incentives go beyond monetary compensation alone. In fact, non-financial incentives can be equally effective in driving ethical behavior.

One powerful non-financial incentive is public recognition of ethical behavior. Acknowledging employees who consistently exhibit integrity and compliance can be a powerful motivator for others to follow suit. Whether it’s a simple pat on the back, an ethical award, or a t-shirt identifying an employee as engaging in ethical behavior, these gestures can go a long way in reinforcing the importance of doing business the right way.

To truly embed a culture of ethics and compliance within an organization, incentives should be integrated into the hiring and promotion process. HR plays a pivotal role in this aspect, ensuring that compliance evaluations and rewards are part of an employee’s discretionary bonus. By making compliance performance a key factor in promotion decisions, companies can send a clear message that ethical behavior is valued and rewarded.

Human resources professionals are experienced in implementing incentives and can effectively measure and incentivize behavior. By leveraging data-driven insights, HR can identify key metrics to evaluate compliance performance and align incentives accordingly. This approach ensures that the right type of behavior is driven throughout the organization, reinforcing a culture of compliance and integrity.

From these general guidelines, I have developed six key principles for developing and delivering incentives into your compliance regime.

The Power of Supporting Systems. Compliance incentives alone may not be sufficient to drive desired behavior. To make these incentives stick, it’s crucial to establish a compliance support system that operationalizes pro-compliance incentives at different levels within the organization. These systems reinforce the importance of compliance and make it visible to employees, ensuring consistent commitment throughout the company.

Incentives Must Be for All. Compliance incentives to be implemented at all levels of the company, from senior management to lower-level employees. It’s essential to recognize that compliance professionals and internal audit staff play a vital role in promoting compliance within the organization. By acknowledging their efforts and providing tangible incentives, companies can highlight the significance of compliance and make it an integral part of the company’s DNA.

Global Consistency. In addition to fairness in your incentive program, compliance incentives should be consistent for employees both within and outside of the United States. Global enforcement of the compliance program not only ensures fairness but also enhances the credibility of the incentive system. By treating all employees equally, regardless of their location, companies foster a culture of compliance and ethical business practices.

Designed to Endure. Creating your incentive program to endure is crucial to ensure the longevity of compliance incentives, especially during financial downturns. A counterweight acts as an institutional mechanism that enforces a continued focus on nonfinancial goals, such as compliance. It prevents compliance incentives from being discarded when other goals take precedence. By incorporating a counterweight into the incentive system, companies can maintain their commitment to ethical practices, even in challenging times.

Compliance Incentives Alignment. You must align your compliance incentives to work in an oblique manner, rather than following a linear approach. This means integrating compliance goals into employees’ daily tasks and responsibilities, making it a natural part of their work. By consistently emphasizing compliance as part of the company’s DNA, organizations can foster a culture where ethical practices are valued and rewarded.

Support Systems. Support systems are critically important for the success of compliance incentives. These systems should be in place even during downturns or cutbacks to support compliance and ethical business practices. They should reinforce the importance of compliance and provide employees with tangible incentives to engage in ethical behavior. By documenting compliance actions, companies can also demonstrate their commitment to regulators if necessary.

Incentivizing ethics and compliance is not just a tick-the-box exercise; it is a powerful tool for driving cultural change within organizations. By integrating incentives into the hiring and promotion process, HR professionals can reinforce the importance of ethical behavior. Data-driven insights enable organizations to measure and incentivize compliance effectively. Whether through financial rewards or non-monetary gestures, incentives play a vital role in promoting a culture of ethics and compliance. Let’s embrace the power of incentives and work towards building organizations that prioritize integrity, compliance, and long-term success.

Always remember, compliance incentives do not have to be elaborate or novel; they need to be consistent and aligned with the company’s values. By implementing enduring compliance incentives and creating a counterweight, you can ensure that ethical behavior remains a priority, even in challenging times. Build a culture of compliance and reap the benefits of an ethically driven organization.

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FCPA Compliance Report

FCPA Compliance Report – Peter Grossman and Duane Stumpf on Crafting Impactful Compliance Campaigns

Welcome to the award-winning FCPA Compliance Report, the longest-running podcast in compliance. In this episode, Tom welcomes Peter Grossman, Co-Founder, Chief Strategist at Labyrinth Training, and Duane Stumpf, Global Head of Integrity and Compliance at Alcon.

Starting with a 70s-style rock and roll music number, Alcon Vision’s interactive, animated compliance training program, developed in conjunction with Labyrinth Training, has been recognized with high praise, receiving an Anthem Award and two Telly Awards. This program was created to make the company’s Lens Policy more memorable and engaging.

This podcast episode focuses on creating impactful campaigns and stresses the need for creativity, mission, and quality work. This episode features Tom Fox, Peter Grossman, and Duane Stumpf discussing how the program’s success effectively delivers important lessons in ways people will remember and enjoy. Through this episode, the trio offers great insight into developing meaningful campaigns that will have a lasting impact.

Key Highlights:

  • The Lens Policy
  • Creating Compliance Storytelling
  • Compliance Training Musical
  • Dr. Louis’ Musical Number
  • Award-Winning Compliance Training
  • Creating Impactful Campaigns

Resources:

Peter Grossman on LinkedIn

Labyrinth Training

Duane Stumpf on LinkedIn

THE LENS

CALL DR LOUIS

Tom Fox

Threads

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Compliance Into the Weeds

Compliance into the Weeds: Auditing AI For Compliance

The award winning, Compliance into the Weeds is the only weekly podcast which takes a deep dive into a compliance related topic, literally going into the weeds to more fully explore a subject. Looking for some hard-hitting insights on sanctions compliance? Look no further than Compliance into the Weeds! In this episode, Tom and Matt consider the current difficulties for auditors to perform an audit on AI.

The use of AI in the tech world has brought with it a new concern: implicit bias. Auditing AI code is necessary to ensure that AI applications are free from bias and secure from cyber threats. This complex process involves examining the code of AI programs to ensure that they are functioning as intended and are not producing biased or unethical outcomes. In addition to auditing code, employers must also audit the outcomes of AI tools, and consider ethical considerations when defining the data that the AI is looking at. As AI hiring audits become increasingly necessary, it is more important than ever to ensure that AI applications are free from bias and secure from cyber threats.

 Key Highlights

·      AI Implicit Bias

·      Auditing AI Code

·      AI Hiring Audits

 Resources

Matt 

LinkedIn

Blog Post in Radical Compliance

Tom 

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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Board Investigation Protocols

Many companies have an investigation protocol in place when a potential compliance violation or other legal issue arises. However, many Boards of Directors do not have the same rigor when it comes to an investigation, which should be conducted or led by the Board itself. The consequences of this lack of foresight can be problematic, because if a Board does handle an investigation right, the consequences to the company, its reputation and value can be quite severe. The SEC considers a variety of factors around corporate investigations including: Did management, the board or committees consisting solely of outside directors oversee the review? Did company employees or outside persons perform the review? If outside persons, have they done other work for the company?

Dan Chapman has said this is the time for a very frank conversation with your Board about what such an investigation will entail. Costs must be adequately discussed to set proper expectations. These include both direct costs and, what Chapman believes may be even more important, a discussion of indirect costs to the company. He noted, “the biggest cost to a company during an investigation is the diversion of management resources” and, as he further explained, “everything stops to focus on the investigation.” This indirect cost comes through largely the time commitment of senior management. He further explained, “if senior management has to commit 20% of their time to the investigation, that’s 20% that’s not going towards revenue generating, shareholder value protecting activities.”

Finally, Jonathan Marks has noted after notification of serious allegations, Boards should take the following steps:

• Consider creating a Special Committee to conduct the investigation;

• Establish a committee charter;

• Preserve the electronic and hardcopy documentation environment;

• Communicate with external auditors; and

• Plan potential communication with the SEC, DOJ, and the relevant stock exchange.

Marks also notes that while a special committee might be necessary in certain rare circumstances, the Board should try to avoid forming a special investigative committee to oversee the investigation if the Audit Committee is composed of independent and disinterested directors that are suited for the task. A special committee must be disbanded at some point (usually once the investigation is completed and before the restatement process begins), and the disbanding could become a complicated news item. Conversely, if the Audit Committee oversees the investigation, then, once the investigation is complete, they can pivot back to their normal role, which would include overseeing the actual restatement process. Investigations overseen by the Audit Committee also benefit from the positive relationship that the committee chair usually has with the audit partner of the company’s external auditor.

 Three key takeaways:

1. The Board should have a written protocol for investigations prepared in advance.

2. Any Board led investigation must be both credible and objective.

3. The investigation must be thorough but the Board can be cost effective.

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31 Days to More Effective Compliance Programs

One Month to Better Reporting and Investigations – How an Investigation Informs Remediation

There is nothing like an internal whistleblower report about a FCPA violation, the finding of such an issue or (even worse) a subpoena from the DOJ to trigger the Board of Directors and senior management attention to the compliance function and the company’s compliance program. Such an event can trigger much gnashing of teeth and expressions of outrage followed immediately by proclamations “We are an ethical company.” However, it may well be the time for a very serious reality check.
In addition to robust investigation, a company must engage in remediation of the offending conduct. The 2020 Update to the Evaluation of Corporate Compliance Programs mandated the additional significance of this by providing that this process must be considered “both at the time of the offense and at the time of the charging decision and resolution”. When you consider the strictures around continuous monitoring and continuous improvement in compliance programs it is clear why this analysis is so important. Obviously, a key test of any compliance program is when a deficiency is found and a violation occurs. The question then becomes, what did you do about it.
But from the DOJ (and Securities and Exchange Commission) perspective, the key is to use the information to both fix the problem so that it does not occur again but also improve your compliance regime.

Three key takeaways:

  1. How does your investigation inform your remediation plan?
  2. A compliance program failure offers a way to upgrade your regime.
  3. Your investigative team must inform your remediation team.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Issues in Cross Border Investigations

In an article, entitled “Internal Investigations, How to Conduct an Anti-Corruption Investigation: Developing and Implementing the Investigation Plan”, Mara Senn, now Director & Senior Counsel, Global Compliance Investigations at Zimmer Biomet  and Michelle K. Albert, former lawyer at Arnold & Porter discussed cross-border investigations. They considered the following issues.
Offer interview translations.
Avoid cultural pitfalls.
Observe data privacy restrictions.
Comply with labor requirements.
Be aware of other local requirements.
Put forms in native translations.
Preserve the attorney-client privilege.
Prepare for local enforcement actions.
Prepare for security risks.
Protect whistleblowers.

Three key takeaways:

  1. Use translators and translations of key documents in witness interviews.
  2. Use local counsel to facilitate the investigation and to help navigate any local anti-corruption investigation issues.
  3. Never, never, never retaliate. The SEC will pay whistleblower bounties for non-U.S. citizens.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – The Witness Interview

What are the characteristics of a good interview in the context of an internal investigation? Is there one technique you can use which will provide you the results you want to achieve? How should you think through your questions and document review prior to the investigation? At this point in time, how do such issues play out in the time of Coronavirus?
There is no one right way to prepare for and conduct an interview. What is important is that you have a plan and execute on that plan. Begin by obtaining an understanding of what the various stakeholders want answers to. This could include the Board of Directors, C-Suite executives, the GC and legal department, the CCO and compliance function or up to government regulators such as the SEC or DOJ.

Three key takeaways:

  1. There is no one right way to prepare and do an interview.
  2. The interview should not be confrontational.
  3. The interview, like the entire investigation process, is a chess match.
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31 Days to More Effective Compliance Programs

One Month to More Effective Reporting and Investigations – Investigative Challenges

What are some of the top challenges you may face during an investigation? Beyond the basics, a company must consider the intake process as a starting point, which Jonathan Marks noted is one of the biggest challenges. Rather surprisingly, he noted there are still companies without a hotline or anonymous reporting system, stating “We still see organizations whereby there is no formal ethics hotline except for the fact that they might send an email to some member of management or some member of the Board.”
Planning your investigation, having the right team members involved, and meeting the challenges which inevitably arise during an investigation can be difficult. However, beginning with the DOJ’s 2015 Yates Memo, the 2016 FCPA Pilot Program, and the 2017 and 2019 versions of Evaluation of Corporate Compliance Programs, together with the 2020 Update, 2023 ECCP, and FCPA Corporate Enforcement Policy, the pressure on every CCO and company to get an investigation done quickly, efficiently and, most importantly, right is even greater now. Marks has laid out a concrete way for you to think through how to plan an investigation, staff it correctly, and meet the inevitable challenges.

Three key takeaways:

  1. The intake process may seem the most straightforward but many companies drop the ball at this initial step.
  2. You must never retaliate against employees who come forward in good faith.
  3. Always think several steps ahead.
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31 Days to More Effective Compliance Programs

One Month to Better Reporting and Investigations – Preparing for the Investigation

Under Part 1, Section D. Confidential Reporting Structure and Investigation Process stated in part, Properly Scoped Investigation by Qualified Personnel –What steps does the company take to ensure investigations are independent, objective, appropriately conducted, and properly documented? How does the company determine who should conduct research, and who makes that determination? These questions were presaged by the DOJ’s 2015 Yates Memo and the 2016 FCPA Pilot Program. The pressure on every CCO and company to get an investigation done quickly, efficiently and, most importantly, right is even greater now.
Jonathan Marks began by cautioning that when considering any well-run internal investigation, a CCO must be cognizant of the strictures laid out in the Evaluation. It all begins with who in-house is looking at the complaint and does the CCO, compliance practitioner, or legal team have the skills and capabilities to handle the matter which has arisen. Obviously, if there are esoteric accounting issues or significant internal control workarounds and overrides, a CCO may not have the skills to really understand all the issues. Similarly, if the matter is a global FCPA or equivalent bribery and corruption matter, Marks related, these “come in different flavors, and because they come in different flavors you may not have the skills or capabilities to do an investigation that would take place in say Brazil or Russia or China or India.”

Three key takeaways:

  1. Always remember your ultimate audience may be the government.
  2. You must understand both the business environment and extended business enterprise.
  3. Communication and collaboration in any investigation are critical so you should begin early and continue to do so throughout the investigation.
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31 Days to More Effective Compliance Programs

One Month to Better Reporting and Investigations – Triage of Internally Reported Allegations

One of the things that I learned from the television series M*A*S*H was the need for triage. In the hospital setting, triage is the process of determining the priority of patients’ treatments based on the severity of their condition. In the 2012 FCPA Guidance, there is a short but succinct statement, “once an allegation is made, companies should have in place an efficient, reliable, and properly funded process for investigating the allegation and documenting the company’s response, including any disciplinary or remediation measures taken.” This is considered in more expansive language in the 2020 Update to the Evaluation of Corporate Compliance Programs.  Under Part 1, Section D. Confidential Reporting Structure and Investigation Process, it stated in part, Properly Scoped Investigation by Qualified Personnel – How does the company determine which complaints or red flags merit further investigation?
Appropriate triage of allegations has several different impacts for any matter which comes to the attention of compliance. Obviously, it will help you to initially determine the seriousness of the matter. From there you can allocate an appropriate level of resources. It will also aid in your discussion with the DOJ if you must go that route. Finally, in the situation where facts come in, it provides the required documented evidence that a process was followed that you can show the government that a claim was properly scoped, as required under the Evaluation. But the key is to be prepared, not only in terms of having your investigation and notification protocols in place before an allegation comes in but also doing the proper triage so that you have an initial understanding of what you may be facing.

Three key takeaways:

  1. Compliance can learn from M*A*S*H about the need for triage.
  2. Initial triage allows you to separate the wheat of serious allegations from the chaff of more inconsequential allegations.
  3. A robust triage process allows for greater credibility with government regulators.