Incentives need to be part of your compliance program: DOJ's DAG Monaco makes very clear how to do this
DAG Monaco: How to use incentives in your compliance program
?Deputy Attorney General (DAG) Lisa Monaco on September 15, 2022, issued a much-discussed memo to apply throughout the Department of Justice (“DOJ”) relating to prosecutions and compliance programs (“the Monaco memo”). While there has been much focus on this memo, one of the most important points has been generally overlooked or glossed over.?
First, a note for my friends who frequently refer to “DOJ memos.”??A DAG actually has power over the entire department.??So when she speaks it is DOJ.??Otherwise, when someone in the Criminal Division speaks, it is just one Division.??So when that one Division issued a guidance on compliance programs it was not the entire DOJ – it was the Criminal Division.??Why does this matter???Because the Antitrust Division has its own excellent guidance and the Environmental and Natural Resources Division beat everyone to the punch by issuing its own guidance on July 1, 1991. So the Monaco memo really is news from DOJ.???
The Monaco memo discusses evaluating companies’ compliance programs and on pages 9-10 discusses a topic that it seems almost everyone dealing with compliance outside of government likes to ignore:??incentives.??The use of incentives has been an essential element of compliance programs at least since it was included in the Sentencing Guidelines in 2004. (Although I personally have been championing the role of incentives since 1988 when the first book I co-authored came out.) Read the compliance literature by academics and they routinely leave this out.??Attend continuing education programs and notice it is usually missing. Look at published lists of core compliance program elements and see if you can find incentives.??
But the Monaco memo dives right in with specifics and the message that incentives count.??Could she have been any clearer than this?
“When conducting this evaluation, prosecutors should consider how the corporation has incentivized employee behavior as part of its efforts to create a culture of ethics and compliance within its organization.” P. 10
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She calls for companies to promote the right culture “by rewarding those executives and employees who promote compliance within the organization.”??How does she suggest doing what apparently has remained a deep mystery to so many???How about?
“the use of performance reviews that measure and reward compliance-promoting behavior, both us to the employee and any subordinates whom the supervise.”?
I rather suspect any corporate person who actually wanted to do something in this area would have also thought of this.??
Now, after 18 years of everyone except the government ignoring the specific language of the Sentencing Guidelines and very clear statements from enforcers going way back, maybe people will start stepping up to what really drives behavior and what should have been at the core of compliance programs from day one - incentives.??See Murphy, “Using Incentives in Your Compliance and Ethics Program” (SCCE; 2012),?https://assets.hcca-info.org/Portals/0/PDFs/Resources/library/814_0_IncentivesCEProgram-Murphy.pdf
General Counsel; Head Legal; Legal Consultant; Corporate Secretary | LEC (Bar exams)
2 年Absolutely. It should inform each employee’s targets for purposes of his/her performance appraisal- a win/win!
The Voice of Compliance*Founder of The Compliance Podcast Network*Evangelizing for and Serving the Compliance Community
2 年Joe-as always spot on. Incentives have long been a part of any best practices compliance program. For any compliance professional who might wonder how to structure such an incentive as a part of a year-end discretionary bonus I suggest they go down the hall and talk to HR, who can provide insight into how to structure and then assess any such component.
Regional Compliance Manager - Europe, Middle East and Africa at SAP
2 年Great summary Joe! I wonder what form these incentives should take to have optimal effect? Creating a compliance culture is not the typical repetative tasks that gets boosted by the traditional monetary incentives. It might perhaps require a different kind of incentive that will make employees feel that they belong and which spark their interest to voluntarily participate. Almost like the opensource projects all around us, like Wikipedia, Linux or Firefox.
Director, Compliance
2 年Great article and summary. Thanks for putting it together.
Director, Ethics & Compliance | DEI Ambassador | Lecturer & Speaker | *all views expressed are personal*
2 年Very insightful summary on this particular point. Thank you! Dr. Tobias Kruis, LL.M., CCEP-I Katarzyna Golonka, CFE, CCEP-I seems very much in line with our current discussions ;).