Two Great Upcoming Webinars

There are two upcoming FCPA and compliance webinars that I want to tell you about. They will provide to you some excellent information on the FCPA and compliance in general.

First is myself and Patrick Kelkar, partner at The Mintz Group. We will present a webinar, hosted by Ethics Point on Tuesday, February 14 at 1 PM EST. We will discuss altering areas of FCPA enforcement that present higher or different risk as evidenced by recent legal actions. Patrick will use the incredibly fabulous resource of the The Mintz Group’s new “Where the Bribes Are” FCPA heat map to lead a discussion of new trends in the marketplace, specifically around new areas that present greater or different FCPA risks. We will use it to explore examples of industry-specific FCPA cases in Energy/Defense/Aero and geographically specific cases, such as Brazil. Lastly we will discuss specific cases associated with new minimum best practices moving forward (specifically Johnson & Johnson and Aon). For information, click here.

Second, my “This Week in FCPA” colleague Howard Sklar squares off in a battle royal with the FCPA Professor, Mike Koehler, in a discussion/debate on the merits of a compliance defense under the FCPA. The event is hosted by Bruce Carton at Securities Docket and is scheduled for Tuesday, February 21 at 12 noon, EST.

Drawing upon his just-released paper on the topic (“Revisiting a Foreign Corrupt Practices Act Compliance Defense”), Professor Koehler will argue in favor of Congress creating an FCPA compliance defense. He will explain why the unique aspects and challenges of complying with the FCPA in the global marketplace warrant a specific FCPA compliance defense and how the DOJ already recognizes a de facto FCPA compliance defense, albeit in opaque, inconsistent and unpredictable ways. Howard Sklar contends that there are two overriding reasons why Congress should not include a compliance defense to violations of the FCPA. Sklar contends that corporations will not see any incremental benefit from making effective compliance a defense, and, moreover, that taking discretion out of the hands of the prosecutors will create unintended and adverse consequences that will more than offset any slight benefit corporations may obtain. For information, click here.

I hope that you can attend both of these great events.

Creating Sustainable (Compliance) Performance

Compliance practitioners are continually tasked with moving a company’s culture of compliance forward. However, the day-to-day work is sometimes too granular to see results. In an article in the January-February issue of the Harvard Business Review, entitled “Creating Sustainable Performance”, authors Gretchen Spreitzer and Christine Porath explore some different techniques that managers can use to “help employees thrive at work.” They note that even in a down economy, thriving employees out produce non-thriving employees. The authors defined ‘thriving’ as employees who are not only “satisfied and productive but also engaged in creating the future” for their organization. I thought about these concepts within the context of promoting a culture of compliance within your organization.

The authors posit that there are two components to such thriving employees. They are vitality: “the sense of being alive, passionate and excited” and learning: that being the “growth that comes from gaining new knowledge and skills.” These two concepts work in concert and lead to employees who “deliver results and find ways to grow” on the job. Just think about the power of these concepts if you could apply them to advancing your company’s compliance program. The authors list four steps that managers can take to help employees thrive, which I have adapted for the goal of promoting compliance within your company.

Provide decision making discretion. Here the authors believe that employees will be energized if they can make decisions which affect their work. For your compliance program, it means listening to and working with your local employees to come up with better ways to implement and enhance compliance. But you must take care not to cut back on empowerment simply if a person makes a mistake. Such an eventuality can and should be used as teaching opportunity.

Share information. People will contribute to an organization more effectively when they understand how their specific work fits within the company’s overall mission and strategy. It is difficult to look for innovative solutions if the impact cannot be seen. Compliance should be open and transparent to allow employees to see the fruits of their ideas and efforts as systems which make information widely available should build trust and confidence.

Minimize incivility. This one should be held close by the lawyers in compliance and legal departments. I do not mean yelling and screaming but taking the time to listen and explain. As a lawyer, I sometimes revert to my legal training that all I need to do is explain the rules and that should be enough for everyone to understand. If employees face incivility the authors believe they are “likely to narrow their focus to avoid risks and lose opportunities to learn in the process.”

Offer performance feedback. The authors believe that feedback is the mechanism by which opportunities for learning are presented. Further, the more direct and the quicker the feedback is presented to an employee, the more useful it is as it resolves feelings of uncertainty and provides focus. This can help an employee get back on track or provide the impetus to match a culture of compliance.

One of the significant factors for each of these four mechanisms is that they do not require a substantial investment or enormous efforts. It does require leadership to be open to empowering employees. The authors conclude that these four mechanisms must be used in conjunction as each one reinforces the other. But the results can be very helpful in moving your company forward. In the 2012 economic climate putting such building blocks in place can be a powerful tool for your compliance efforts going forward.

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2012