FCPA Compliance and Ethics Blog

September 3, 2014

Language as a Long Term Compliance Strategy

LangaugeI constantly rely on Jay Rosen and his team at Merrill Brink for translation and other language related services in the compliance portion of my work. (Yes I do practice law and compliance for a living; I blog for gratis.) For not only am I required to help evaluate documents in a foreign language which need to translated into English but often I need a foreign language version of compliance related documents that I create, from third party questionnaires to contracts to Foreign Corrupt Practices Act (FCPA) training materials. While I still tend to think of language as a tactical issue, Jay has long striven to have me see it as part of a businesses overall strategy.

I think I may have finally seen the light that Jay has been preaching to me over the past few years when I read an article in the September issue of the Harvard Business Review (HBR), entitled “What’s Your Language Strategy?” by Tsedal Neely and Robert Steven Kaplan. The authors posit that language should bind not only your company’s global talent pool but also your company’s vision. After concluding the article, I now understand how language is a strategy to help inform your compliance program as well. This is because just as “Language pervades every aspect of organizational life” the authors believe that companies “often pay too little attention to it in their approach to talent management.” I would add that is also true in the compliance function.

The authors believe that problems revolve around potential “blind spots regarding language.” They write that company leaders pay too little attention to the role of language when “hiring, training, assessing and promoting employees. This can lead to miscommunication and friction, especially among team members who collaborate across borders.” While the authors point that a company’s competitiveness that may suffer, I would suggest that a company’s compliance function could also suffer. The authors believe that a company should align its language strategy with its overarching priorities. Further, by building “language skills and cultural awareness throughout your organization in order to acquire and develop the kind of talent you need to compete globally and locally.” The authors believe that by paying attention to this issue, your company can potentially turn “vulnerability into a competitive strength.”

The authors identify five key points which a company should evaluate regarding language. I would also add they relate directly to any international company’s anti-corruption compliance function whether under the FCPA; UK Bribery Act or other anti-bribery regime.

Hiring and Training

Here companies need to understand how candidates might come across in the interview or other pre-employment evaluation process. While a candidate with multiple language fluency may overshadow deficits in other critical areas, it may also be a problem because as an evaluator, “you may need to accept some limitations on language capabilities and be prepared to provide training to meet both global and local language needs.” But even if you get pass this first hurdle the authors identify a follow up problem in this area; that is, after hiring and/or promotion. They state, “Another blind spot is a tendency to over rely on external lateral hires with a certain degree of language skill to fill midlevel roles rather than hiring and grooming outstanding junior candidates with the capacity and motivation to learn new languages. While the latter approach may initially take more time, companies often find that entry-level hires ultimately become their best leaders, because they have been trained from an early stage in company culture and practices. Defaulting to lateral hires can make it more difficult to build a cohesive culture—those recruits have been trained elsewhere and may have trouble assimilating.”

Evaluating Talent Accurately

Even if your company does improve its entry level hiring practices and provide training to assist new employees in their language skills, you still need to make accurate performance evaluations. Here companies may get into trouble because “Language agility does not necessarily spell high performance.” The authors point to the need for a robust process to assess skills and attributes which allows a company to “look beyond verbal agility when gauging performance. It’s a reality check, a way to make sure that you and other leaders are not unduly swayed by fluency.”

Rethinking the Role of Expatriates

One of the key areas in the compliance field is to develop local compliance talent and expertise. This is not only because “expatriates may not be familiar with the local language, culture, and business practices, they can bring knowledge of organizational culture along with an understanding of the company’s products, processes, and systems.” One of the roles of any compliance manager, particularly an ex-pat is “to focus on developing local talent and ensuring that indigenous professionals begin to play leadership roles in the local businesses.” Equally important is to “think about the people you’re choosing to send abroad. To build a strong team of local leaders, it’s critical to give expatriate assignments to your best people—not just to solid contributors who happen to have the right language skills and are more easily dispensed with at home. Otherwise, you may find that your firm’s global offices fail to attract, develop, and retain the strong indigenous talent they need for high performance.”

Managing Communications on a Global Team

Most of the company’s I have worked at hold all their communications in English-language on a company wide basis. Of course I thought this was great. But the authors note that “managers often unwittingly position native speakers of a lingua franca as “winners” within the firm; consequently, nonnative speakers experience a substantial loss of power and status. If companies don’t take such issues into account, they can cause otherwise talented and engaged professionals to underperform and even withdraw.”

The authors believe that managers need to understand which of their employees are comfortable with the second-language proficiency and those who may not be so comfortable. They provide specific guidance as follows, “Global managers must deal directly with such issues to promote productive global cooperation. They must be sensitive to how employees of varying language proficiency are interacting. The goal is to make it easier for native and nonnative speakers to establish trust and communicate effectively. Managers’ observations should include the following: Who attends meetings? Who speaks up? Are the best employees contributing, or is language getting in the way? It’s then important to facilitate meetings and calls so that nonnative and native speakers get equal airtime. Often this means coaching primary-language people to speak less and second-language people to speak more. It also involves setting clear agendas up front, considering the mode of communication, and thinking through meeting choreography in advance.”

Building Cultural Awareness

The authors conclude by reminding us that language fluency does not always equate to cultural fluency, as “too often leaders underperform because they fail to adapt their management styles and practices to fit a multicultural environment. For them, understanding the cultural background of each team member, the role of the company, its products and services, and the customers it serves within various cultural and regional contexts is as essential as learning to conjugate new verbs.” They believe that “Managers should be held accountable that language and cultural skills are developed throughout their organization.”

The authors’ piece is chock full of ideas, insights and issues for a Chief Compliance Officer (CCO) or compliance practitioner. Any company doing business internationally is going to have the issues that the authors discuss in their article. The compliance function has all of these issues in spades because if you need to consider the FCPA, it is because you are doing business internationally.

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, 2014

October 18, 2013

Ethics, Compliance and School Drop-Off Etiquette

Ed. Note-today we have a guest post from Jay Rosen, Vice President, Language Solutions at Merrill Brink International. He shares with us how he stopped worrying about early morning road rage and learned to embrace his fellow compliant (and noncompliant) parents.

I recently returned from the Society of Corporate Compliance and Ethics 13th annual Compliance and Ethics Institute (CEI) in Washington, DC.  I would like to thank CEI Co-chairs Dan Roach and Odell Guyton, as well as SCCE CEO Roy Snell and his entire team for running and executing one of the premier ethics and compliance conferences in the world.

Last fall, I attended my first SCCE event — the 12th annual CEI.   Over the past year I have been moved by the passion, commitment and generosity of the SCCE and Compliance and Ethics community.  I have developed great virtual and over- the-phone friendships and it is an added bonus to meet in person with colleagues from all over the world and across the country.  I am already looking forward to the 14th CEI which will be held in Chicago from September 14 – 17th, 2014.

With much joy, I was settling back into my routine and taking my five year old twin daughters to kindergarten.  While I was away, one of the parents sent an email to the entire kindergarten class parents list serve which shared the following…

Exhibit 1

 “To the dear parent (mom) who drives a black Cadillac Escalade, when you get to school’s gate in the morning and realize other parents are waiting in front of the gate, please do not go to the other side of the street and make a left turn in front of everyone else who is waiting there before you. I am sure everyone else’s time is as valuable as yours. Thank you for your cooperation.

From: another mom who was waiting outside for ten minutes

Exhibit 2

Dear Mom who was Waiting Outside for Ten Minutes,

Thank you for posting!  Let’s provide a safe learning environment for our children and lead by our positive actions.
Exhibit 3

Dear Jay 

Thank you very much for your support. After two angry e mails from two parents about why I used their e mail to send them this posting, yours is very supporting. I hope at least this posting will help others realize what they do is wrong.

As this is a new experience for kindergartners, going to class with the “BIG” kids, being dropped off by Mommy or Daddy (mostly DaddyJ), the school has made special provisions for parents to drop their children off in front of the kindergarten class between 7:45 – 8:00 AM.  While this is a courtesy for the parents, it is most importantly intended to provide a safe introduction for kids into their new daily school routine.

If a parent arrives before 7:45 AM, they are supposed to simply pull to the curb and wait until the gate opens precisely at 7:45.  Over a five minute span, anywhere between 2 and 7 vehicles will get in line.  Without fail, there are two things that can happen –

  • One parent (usually driving a black SUV, this is LA after all), decides to cut the line, zoom up to the front and power through just as the gates are opening.  Either a case of too many Vente drips this morning, or maybe having recently completed watching all 7 episodes of The Fast and the Furious or
  • Another inventive parent, comes from the other side of the street and executes an illegal U-turn into three lanes of on-coming morning school/rush hour traffic

I have twin 5.5 year old daughters (who many of you know about and have been forced to see all of their pictures… especially “Sassy Girls Going to Disneyland”)and one of them is always concerned with the concept of being “Fair”.  So let’s look at this situation through the lens of being Fair and Safe.

This rule was designed with having our children’s safety in mind.  Let’s create a safe way, to help our children transition into loving their education and at the same time, create a convenient way for parents to drop off their kids.  So far, so good.  Sounds like a good idea.  Right

When one parent begins to feel that his or her time is more “Valuable” than another’s that is where the problems begin.  Hmmm… let’s see if we can paint this dilemma in a business context.  Perhaps there is an industry or global standard designed to ensure workplace safety, clean production of milk powder or even provide a level playing field for conducting global business and winning sales contracts.  Once one parent or Company feels that they are above the rest, we start down a slippery slope.

This hits at the crux of why people and companies should act in an ethical way.  Should we follow rules, laws and industry standards because it is the right thing to do, or should we follow these rules because they have been designed to safeguard certain situations?

Being the recovering screen writer that I am, the vision of Tom Hulce from Animal House pops into my head with a devil and angel hovering over his shoulders.

Obviously, in my potential Pre-School Road Rage Drop-off Scenario, there is only one acceptable way of behaving and it is precisely for both of these reasons.  Safely observe the drop-off to ensure our children’s safety and because it is the right thing to do.

Now when face with this decision in the business world, it should be an equally simple choice to make.  Do the right thing.  But once money, power, prestige, hitting monthly sales targets, and a slew of other factors come into play, it becomes a less clear cut and harder decision to make.

So Jay, umm, great story and all, but you said that you were going to impart something to us about Compliance and Ethics.  Yep, that’s right.  Just as Tom Hulce did in Animal House, we often have those two competitive forces within us – Right and Wrong, Good and Bad, Red Sox and Yankees… but at the end of the day, we need to make the right choice.

For most of us of us, this is an extremely hard thing to do.  But thanks to the vision of Dan Roach, Odell Guyton and the leadership of Roy Snell, over the past 13 years, the SCCE has created a kindergarten for business leaders and compliance and ethics practitioners to learn and develop the proper tools to help their colleagues make the right choices in difficult and challenging situations.

Robert Fulghum penned his famous book — All I Really Need to Know I Learned in Kindergarten.   And I would add, “All I Really Need to Know (about Ethics and Compliance) I Learned at the SCCE CEI.  Now if only I could find a way to deal with my morning drop-off rage.  Hey, how about cutting down on those 3 14 oz New England Patriot travel mugs of coffee each morning…

Jay Rosen is a Vice President, Language Solutions at Merrill Brink International, based in Los Angeles, where he advises businesses and law firms on translation solutions for FCPA, Ethics, Compliance, Code of Conduct and eLearning. He can be reached via email at jay.rosen@merrillcorp.com and via phone at 310-729-6746.

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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. 

December 7, 2012

How the Noir Novel Informs Your Compliance Program

In the Work Matters column in the December 3 Issue of the Texas Lawyer, in an article entitled, “Ten Phrases Lawyers Hear That Portend Disaster” author Michael Maslanka explored his love of noir fiction, which I share, through listed 10 phases that show the “it” so famous in noir novels is coming. The ten warning signs that he listed are as follows:

1. “Isn’t it obvious?” I hear this from managers when a company refuses to hire a disabled applicant, as in, “Isn’t it obvious that a man with one arm can’t do this job?” The manager unwisely forecloses the inquiry required by the Americans With Disabilities Act: An employer must determine if the employee can perform the essential functions of the job, with or without a reasonable accommodation.

Another example is when a supervisor says, “Isn’t it obvious that we don’t want to hire a convicted felon for this job?” That person unwisely ignores the EEOC’s new emphasis that automatic exclusion of an applicant with a criminal record may be a proxy for race discrimination.

2. “This is a no-lose case with a guaranteed two-comma verdict.” Listen to this quotation from Proverbs 28:20: “[H]e that maketh haste to be rich shall not be innocent.” Isn’t that the truth?

From the fictional Gordon Gekko to the all-too-real Bernie Madoff, those who greedily grasp after riches may be slow to reveal their lack of integrity. They show their true character only under careful attention and scrutiny. The best antidote: Be a person of character. As W.C. Fields wisely remarked, “You can’t cheat an honest man.”

3. “We must decide today!” Here is the greatest enemy of an integrity-based decision: time pressure. “Fire the employee now!” “We have to get this order of widgets out by 5 p.m. — no ifs, ands or buts.”

To paraphrase H.L. Mencken, decisions made under unnecessary time pressures usually are “swift, sure, and wrong.” When under pressure to do something “now,” the wise attorney should ask the client, “If we had 10 times as much time to make this decision, would it be the same decision?”

4. “That’s the other side’s problem.” I hear this from time to time, and I bet many lawyers do. These two statements always are cause to take a timeout:

• “That’s not our problem; it’s the other side’s problem”

• “Let them worry about that.”

When people start saying things like that, ask whether they’re doing so because the statements are true or because the underlying issue involves unpleasant facts that it’s easier not to acknowledge. Recall Ben Franklin’s wise advice: “Half a truth is often a great lie.”

Litigators and deal makers hear phrases like these. Events are percolating along, and someone on the team asks, “Should we be doing this?” or “Does the other party know about this issue?” When the question answers itself, it’s time for the lawyer to ask whether truth or convenience is driving the client’s position. Convenience never trumps ethics.

5 “Everybody else is doing it.” Here is just some of what I have heard in 31 years of practicing law:

• “Companies in my industry don’t pay overtime, so why should I?”

• “The guy with the company down the road fired the union organizer among the employees, and nothing happened to him.”

• “Don’t tell me what I can’t do; I’m paying you for telling me what I can do.”

Those who win the race to the bottom still lose. Stephen Cope, in his book “The Great Work of Your Life: A Guide for the Journey to Your True Calling” explains that “The Bhagavad Gita” teaches that it is better to follow one’s true dharma and fail than to follow others’ false dharma and succeed monetarily. And, let’s face it: The truth comes out in the end.

6. “We can’t change course now. We have too much invested.” This is false-dichotomy territory. How can a lawyer break through this either/or mindset? Mary C. Gentile offers advice in her book, “Giving Voice to Values: How to Speak Your Mind When You Know What’s Right.” She suggests changing the frame. Reject “We did not get what we wanted.” Embrace “What did we learn from this experience?”

Failing to do so conjures up, for me, lines from W. H. Auden’s “The Age of Anxiety”: “We would rather be ruined than changed/We would rather die in our dread/than climb the cross of the moment/and let our illusions die.” Change course. It’s the smart play.

7. Another pair of eyes on the project? You’re joking, right? What a waste.” True, projects are overlawyered and overanalyzed. But active resistance to advice is a telling sign that something maybe seriously amiss. Take it as a warning to press all the more for that other set of eyes.

An ostrich-like attitude of self-delusion can lead to disaster. Listen to Proverbs 1:30-31: “They would none of my counsel: they despised all my reproof. Therefore shall they eat the fruit of their own way, and be filled with their own devices.”

8. “We’ve always thought about it this way, and we always will.” I can do no better than Justice Felix Frankfurter, who decided a legal issue one way in 1943 and then completely reversed course in 1949. He gave this explanation in his opinion in Henslee v. Union Planters Bank: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Genius.

9. It is what it is.” Huh? This phrase now is used principally by those who want to sound insightful and wise but who are just dazed and confused. Only Buddhist monks are allowed to talk like Buddhist monks.

10. You are the most wonderful person I have ever met. We were meant to start this business/do this deal/win this suit.” Beware flattery without facts, especially when it comes too fast, too soon. It is a sign of a sociopath. They target their victims (people they can use), compromise their targets’ integrity, exploit them and toss them aside when finished. The whole cycle starts with false flattery.

These also have application for the compliance practitioner. If you hear a third party mention any of these, either in the due diligence process or in your relationship going forward, you need to drop what you are doing and begin an investigation. If you hear anyone in your company utter these, move post-haste as well. But most of all, these phrases should remind you just how great this classic American fiction is and how you can use it to inform your compliance program.

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For those of you unaware, the Houston Texans will play the New England Patriots in Foxboro this weekend. I have friendly wagers with two of my favorite Patriot fans, Matt Kelly, Editor of Compliance Week and Jay Rosen, Vice President, Language Solutions Merrill Brink International. For the Compliance angle, see the piece by Matt entitled, “Sportsmanlike Conduct”. Go Texans!

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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

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