Compliance and Ethics: Ideas & Answers. Edition 72

Dear friends,

Welcome back to another edition of Compliance and Ethics: Ideas & Answers.

For this week's first piece, we are delighted to welcome guest writer Dr. Seth B. Whitelaw , President and CEO of Whitelaw Compliance Group , with the recipe for a successful healthcare ethics and compliance program.

I've reviewed the EEOC’s harassment enforcement guidance, and while it's well worth reading the foundations are weak. In our second piece this week, I've suggested some of the points that I found to be missing in the harassment compliance standards.

As always, we finish with a bit of fun in our regular feature Compliance Lite.

And don't forget there's more content on our website so please do visit us there to read our other articles.

You can now also sign up for this newsletter via email here .

Thank you, Joe.

The Essential Ingredient in the Healthcare Compliance Recipe

by Dr. Seth B. Whitelaw

Every cook knows that a great meal begins with a recipe.? The same is true for effective ethics and compliance programs.? That recipe is found in the U.S. Sentencing Commission’s Guidelines Manual.[1] ? However, like all recipes, the Guidelines provide a general framework requiring quality ingredients and some tinkering to succeed.? However, if one of these ingredients is omitted, the recipe can fail.?

Take the compliance officer as an example.? However, they do not specify what qualities business leaders should consider when appointing a good ethics and compliance officer.

Attributes

So, what qualities does a good ethics and compliance officer need to succeed? ?Over the last thirty years, I have heard various opinions. ??However, the best description is what my former CEO at GSK, J.P. Garnier, said more than two decades ago.? According to J.P., the ideal ethics and compliance officer is part missionary, diplomat, and policeman. ?I would add that an effective compliance officer must be a quick study and a Curious George.

1. Missionary: ?A good ethics and compliance officer?must genuinely believe in the ultimate objective.?? Those who do not cannot be effective cheerleaders, motivating reluctant peers to embrace a compliant mindset.? However, that belief is not based on blind faith but on passion tempered with practical wisdom. ?Knowing that compliance is difficult and often unpopular, a compliance officer must persist despite the inherent company skepticism about the program’s value.
2. Diplomat: ?A good compliance officer?must also be a diplomat.? Compliance officers are frequently called upon to deliver critical information that will not be welcomed. ?Early in my career, I learned this lesson the hard way. ?We had a compliance issue involving a top performer who should have been terminated. ?Unfortunately, because of my lack of diplomacy, the matter became not about what happened or what should be done but about me. ?Therefore, whether key information is heard, even if unpopular, depends on the diplomatic skills of the compliance officer.
3. Policeman: In addition to being a missionary and diplomat, a compliance officer investigates potential misconduct and ensures the company takes fair and appropriate disciplinary action when warranted. In these situations, the compliance officer acts like a policeman. In that role, the compliance officer must exhibit enormous personal integrity when challenged to look the other way.? It is not easy to stand up to senior executive pressure, especially when an issue involves one of their own.

Like any enforcement role, the?challenge is employing the right level of authority at the right time. ?Failing to act with authority can have disastrous consequences for the company and the compliance program.

1. Quick Study: ?A good?compliance officer must also be a quick study. ?Compliance is responsible for helping companies design and implement workable internal controls across multiple, complex, and often interrelated areas.? However, a single individual, or even a small team, cannot be an expert in every risk area.? Therefore, ?a compliance officer?must have a working (i.e., generalist) knowledge of organizational risks, the ability to see the interconnections, and the experience to recognize when assistance from discrete subject matter experts is required. ?Therefore, he or she must assimilate highly detailed information quickly. ?For example, ?I began my career as a food and drug lawyer, but now, I am an experienced generalist in employment law, anti-bribery, adult learning methodologies, IT integrations, and many other topics.
2. Curious George:? A?good compliance officer must be innately curious. ?He or she must be comfortable asking “why” when things don’t look or feel right. ?An effective compliance officer also remains skeptical and never accepts the answer “because we’ve always done it this way” as?the sole reason for taking a particular course of action. ?

One question that clients often ask is whether a compliance officer must be a lawyer.? Although views on this have varied over, being a lawyer is not essential to being a good compliance officer. ?

Continue reading on our website...

The EEOC’s harassment enforcement guidance – well worth reading, but built on a weak foundation

by Joe Murphy, CCEP

The EEOC has issued a guidance document spelling out its approach to taking enforcement action in harassment cases.? While this guidance reflects a regulator’s enforcement positions, they are well tied back to numerous cited cases. Taking the time to read through this extensive material can provide quite a bit of insight from the cases on what is needed to meet the standards for a defense, based on a company’s efforts to prevent and respond to harassment. I would certainly recommend to anyone practicing in this area that they read this (220 page) guidance. ?

All of this starts from a basis spawned by the Supreme Court. In Faragher v. City of Boca Raton , 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth , 524 U.S. 742 (1998) , the Supreme Court held that companies can avoid liability for hostile environment sexual harassment if they exercised reasonable care to prevent the misconduct and the plaintiff unreasonably failed to report the concerns.? Those and subsequent cases applying the “Faragher/Ellerth” affirmative defense thus looked for reasonableness in an employer’s efforts to prevent and respond to harassment.?The compliance efforts addressed in these cases involved having a policy, providing training, having a reporting system and responding to complaints. The foundation for this was the courts considering what was “reasonable.” But what is missing from all this, and from almost everywhere in the harassment area, is a realistic sense of what is needed for an effective compliance effort. How, in 2024, could anyone consider the anemic elements that are in this tiny list of steps, to be reasonable, diligent, or in good faith, or even meeting the standard of negligence? Harassment is one of many areas relating to compliance efforts. Yet in no other area among modern standards would what is accepted in harassment meet the minimum standards of a compliance program.?

What is missing in the harassment compliance standards?

Here are some of the points that are missing in harassment that are minimum requirements under the USSGs and are reflected in the guidance from DOJ relating to compliance and ethics programs.?

Continue reading on our website...

Being Your Own Kooky Self

Mary Shirley , in her book, Living Your Best Compliance Life: 65 Hacks and Cheat Codes to Level Up Your Compliance Program , advises compliance and ethics people to be their “own kooky selves”, which helps to humanize them.

When Adam Balfour , Mary and I got together to do a video about introverts attending C&E conferences, we compared notes about our kooky selves.

I explained that my kookiness was being a dancer. I am an introvert and don’t look like a dancer, so it surprises people.

Mary picked one of many quirks and reported that she is a big “Hello Kitty” fan, including having that logo on her phone.

But the award for most kooky, without question, goes to Adam. When he was younger Adam juggled knives – actual things with sharp points that for the rest of us our parents told us to avoid.

Of course there had to be jokes about knife juggling being perfect preparation for working in the compliance field.

What about you? Do you cherish your kooky self and share it with others?

Receive Compliance and Ethics: Ideas & Answers via Email

If you, or someone you know, would like to receive our newsletter directly in your inbox, simply click the link below and sign up to stay updated on the latest compliance and ethics tips and discussions.