Compliance and Ethics: Ideas & Answers. Edition 45
Dear friends,
Firstly, Happy New Year! I hope you and your families had a restful and enjoyable start to 2024. And we're back with the 45th edition of Compliance and Ethics: Ideas & Answers and the first of 2024!
In today's edition we'll look at training as a form of auditing, monitoring and assessment before we look at what the DOJ wants us to know about compliance programs? (AAG Nicole Argentieri sends us a message).
We'll also have a bit of fun from our regular feature, Compliance Lite.
And as always, there's more content on our website so please do visit us there to read our other articles.
Thank you, Joe.
Training as a form of auditing, monitoring and assessment?
by Joe Murphy
I saw a recent discussion about the value of short bursts of information as a form of training and communication. I agree with this concept and believe it should be used as part of a company’s compliance approach. But there is an additional reason to retain actual field training sessions.
People sometimes erroneously believe that training is just about communicating information, but this is obviously not the full story. For example, those with more experience realize that effective training also plays an essential role of motivating people to do the right thing.
But training can also play a lesser-known role that is rarely discussed. Live training that is interactive is also a form of auditing, monitoring, and measuring what is happening throughout the company.
If you have done live training you have probably had the same experiences I have had. You watch and listen to the audience. You can usually tell what their reaction is to your message. If people in your audience look surprised or cynical or worried then you know there is more work to do there. You need to talk with them, perhaps individually, about what is on their minds. Or you might recommend that internal audit visit the site. If someone comes up to you after the training and wants to talk with you separately, you know there is something more you probably need to know...
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What does DOJ want us to know about compliance programs?
by Joe Murphy
On November 29 Acting Assistant Attorney General AAG Nicole Argentieri gave a talk about the Department’s activities in FCPA. While there was much talk about enforcement activities past and future, a couple points relating to compliance programs struck me as noteworthy.
Who cares about your existing compliance program?! Just tell us what you did after you were caught!
The AAG continued a message that I believe DOJ does not even realizing it is sending. When she discussed companies that committed violations, Nicole Argentieri praised those who voluntarily disclosed and cooperated. She also spoke well of those who remediated by improving their compliance efforts after the violations occurred. But in the entire address there was not one word about any case recognizing an existing compliance program. This sends a terrible, ironic message:
Who cares what you did before? Just clean up the mess afterward and we will love you. In fact, you could save money on doing compliance until you are caught. Then doing the things you should have been doing all along will get you credit and impress DOJ.
Is this a message they should be sending? Can’t they even find one case where the compliance program that existed before the violation mattered? (Yes, we all know about the decade-old Morgan Stanley case, but note that this was a case where the company itself was a victim, and the company fully disclosed and cooperated. And have there been NO cases since 2012 where a prior existing program was even mentioned?)
DOJ needs to take a smarter approach. The Justice Manual and the Criminal Division’s Evaluation Questions all make it clear prosecutors are to consider the pre-existing program at the time of the violation. Let’s see some evidence that they are actually doing that!
Data analytics? Counting your helpline calls is not data analytics!
The AAG explained that DOJ is using data analytics to detect violations...
Why Human To Human Conversations Can Be More Impactful And Motivating Than A Written Policy
Watch this short and funny video to show how humans can learn and remember more from conversations rather than simply written policies.