October 8th, 2015
In the movie Margin Call, Jeremy Irons intones that there are three ways to win in business: (1) be the smartest; (2) be the fastest; and (3) cheat. I am currently out at the SCCE 2015 Compliance and Ethics Institute and as you might guess the Volkswagen (VW) emissions-testing scandal is a major topic of conversation. One of the more interesting observations is that the VW scandal was not a failure of compliance but an intentional design to cheat emissions standards testing on a worldwide basis.
Columnist Michael Skapinker recently raised this issue in a Financial Times (FT) article entitled “Volkswagen, its software and the psychology of cheating”. I found this article to be a very useful way for a Chief Compliance Officer (CCO) or compliance practitioner to think about how an employee might become in involved in conduct which violates such anti-corruption laws as the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act.
Skapinker identified three general categories of corporate scandals, which he has observed. The first is where the law is unclear and “many who have been testing its boundaries, and those who are finally blamed, fired or jailed either went too far or were selected by prosecutors or regulators to be made examples of”. Skapinker identified the Guinness scandal of 1986, where the company “had offered financial inducements to associates to support its share price”, while the company was in a takeover battle. He also noted, “Some, but not all, accounting scandals fall into this category”.
The second category is where the company actually sells something that either hurts its customers or at the very least does not help them. Skapinker wrote, “The company doing the sell rationalises that it is really up to the customer to decide whether or not they want to purchase the product or services. Many financial services scandals fall into this category but often times, it may involve “outright deception” or what the Wall Street Journal (WSJ), in an article entitled “VW Probe Targets Engineers” is now calling, “a scam”.
The third type of behavior is what Skapinker calls “everyone is doing it” [or what I call the ‘Lance Armstrong Syndrome’] or what I might say is “we’ve always done it that way” excuse. Under this prong, if you do not cheat, it is your company that will suffer because everyone else is cheating so you are really just keeping up. Of course you may cheat better than everyone else (aka Lance Armstrong) but it all revolves around the mentality of which Skapinker says “If we do not do it, when everyone else does…our employees and shareholders will be worse off.” He puts in this final category, things that are possibly legal but “reputation damaging manoeuvers such as routing profits through low-tax jurisdictions to crass immorality such as covering up adverse drug trials and criminal activity such as Libor-rigging and bribe-paying.”
Yet the VW scandal does not fall into any of these categories. Indeed Skapinker says that the VW scandal is “striking in its apparent villainy” as there was certainly no gray area that VW exceeded. He noted, “Devising a system to detect when a car is being tested surely required planning, expertise and specific decision.” Or as Mike Volkov might say, there was intent to deceive. Whatever it was the company did not “drift into [the actions] through incrementally deteriorating behavior.”
The focus of the investigation now appears to be on the senior engineers involved in the defeat device system. William Boston’s, WSJ, article entitled “VW Probe Targets Engineers”,said that the two top company engineers brought in to design an emissions system which would pass regulatory muster have become the focus of the investigation. The company recently suspended them. The engineers Ulrich Hackenberg and Wolfgang Hatz were brought into their positions by the now disgraced former head of VW Martin Winterkorn.
The New York Times (NYT) went further in an article by Jack Ewing, entitled “Volkswagen Engine-Rigging Scheme Said to Have Begun in 2008”, when he wrote the company knew as far back as 2008 that its diesel engines did not meet emissions testing standards. However, “Rather than stop production of the engine and throw out years of work and investment, managers decided to cheat, the people said, confirming a report in Bild am Sonntag, a German newspaper.” As a part of its internal investigation, “After interviewing engineers who participate in engine development, internal auditors have determined that the illegal software was installed beginning in 2008, according to the people familiar with the inquiry, which is still at a preliminary stage.”
What are some of the lessons that the CCO or compliance practitioner might be able to draw from these articles and reports regarding FCPA compliance? Skapinker and his three categories of corporate scandals can be very useful to help identify those employees or those situations that might lead to a high risk for a corruption. Obviously there are places in the world where there is a high perception of corruption but what about places where you are engaged in cutthroat competition? How closely are you looking at indicia that might point to corruption in those locations?
Moreover, are you beginning to see steps towards the edges of the ethical or legal line being taken? This is not directed at the sociopathic employee who does not believe the laws apply to him or her but the employee who moves inexorably out from the middle of the road to the point of kicking dust up on the line of unethical or illegal conduct. As CCO do you have visibility into those commercial activities that might well be moving towards the edges of legality?
As the VW emissions-testing scandal continues to unfold, there will be new facts and new revelations. The lessons will also be more and greater for the CCO or compliance practitioner. However, you may want to use some of this information available to you now to help forestall an issue that might arise later. Think about the other German auto manufacturers and how their reputations have taken a hit from being the same nationality and in the same industry as VW. They will have to prove all of their testing protocols are legal and ethical going forward. You may want to get ahead of the curve a bit on this one.
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September 23rd, 2015
By Thomas Fox.
Last Friday, the Global Investigations Review reported that the Justice Department had named Hui Chen as its new compliance counsel. She was most formerly the head of anti-bribery and corruption compliance for Standard Chartered’s. She had also served as an assistant general counsel at Pfizer between June 2010 and September 2013. Prior to that time, Chen had worked at Microsoft for 13 years and during the 1990s, Chen worked as a Justice Department trial lawyer in Washington and as an assistant US attorney in Brooklyn.
There was much ink spilled earlier this summer about the efficacy of such a position; with a spectrum ranging from substantive, that the Department of Justice (DOJ) attorneys who do not need someone to instruct them on what a best practices compliance program is to the procedural that the compliance counsel position is not a government employee but only a contractor. However, I think those criticisms and the others leveled miss the point of the effect of the creation of this position on the compliance discipline in the corporate environment.
The creation of this position portends that the DOJ will be looking more closely at Foreign Corrupt Practices Act (FCPA) anti-corruption compliance programs to see if they meet the minimum standards or are closer to best practices. This requires companies to actually do compliance and not simply put a paper program in place and say they have an effective compliance program.
I asked Stephen Martin, the Managing Director and founder of Baker & McKenzie’s compliance consulting practice and someone who helps companies proactively enhance corporate compliance programs what he thinks the creation of this new DOJ compliance consultant position. Martin is one of the few experts out there that has a similar background to Hui Chen, having been a former federal prosecutor in Washington and in-house counsel/compliance officer helping WorldCom, Qwest and Adelphia wade through and recover from significant compliance failures and major government investigations.
“Historically, it has been difficult for compliance professionals to explain the “return on investment” in compliance programs to senior management and Board of Directors. Companies questioned whether DOJ and SEC really credited a pre-existing compliance program or enhancements done during an investigation and/or resolution. The DOJ and SEC listened to the compliance community and publicly released the rationale in the Morgan Stanley declination as resulting from the effectiveness of Morgan Stanley’s compliance program.
Now, the DOJ is furthering its focus on the importance of compliance by clearly signaling how intently DOJ will be evaluating compliance programs in charging decisions, resolutions and monitorships. By retaining a compliance consultant with previous DOJ and in-house compliance experience, DOJ is sending a strong message to senior management and Boards of Directors that it is now critical that companies have a robust, effective and sophisticated compliance program covering both FCPA and non-FCPA risk areas.
For DOJ, this is a great step forward in being able to actually understand compliance programs and how they operate in the real world, in difficult environments when investigating and resolving matters. For companies, the “return on investment” is clear…the benefits of an effective compliance program far outweigh the costs of the program and help mitigate government enforcement and compliance related risks. For compliance professionals, the DOJ’s increasing focus provides the rationale for helping companies truly move to instituting and maintaining a practical, best practices compliance program that meets the rising expectations of the DOJ.”
As Martin makes clear, having a robust demonstrable program in place is now even more critical. The foundational elements of a best practices compliance program are well known and available to anyone looking. Of course, I would say one of the best place to start is my book Doing Compliance: Design, Create, and Implement an Effective Anti-Corruption Compliance Program which is based on the 10 Hallmarks of an Effective Compliance Program, as laid out in the FCPA Guidance. But you can use other formulations such as Martin’s Five Elements of an Effective Compliance Program, the OECD 13 Good Practices or even the UK Six Principles of Adequate Procedures as the basis for your compliance program.
Whichever formulation you use, the steps are straightforward. Top management must commit to having an effective compliance program and that commitment must be transmitted down throughout the organization. You need to assess the risks to your organization around anti-corruption and to manage those risks accordingly. The specifics of the compliance expectations must be set out in a policy and sufficient procedures must be implemented to all the policies to be followed.
There must be a compliance function, with sufficient resources, authority and visibility within your company to lead this area, with appropriate board oversight. You must provide training on not only the company’s expectations around compliance, but also how to do compliance. There must be sufficient incentives in place, around hiring and promotion. There must be a mechanism for reporting of violations and then an appropriate response, through investigations and reporting of any violations of your compliance program. Additionally resources need to be placed around the management of compliance risks involving third parties and mergers and acquisitions (M&A). A company must have a mechanism to keep abreast of and then implement appropriate technological and business improvements as well as any legal or business related changes in anti-corruption compliance. Finally, all of the above must be thoroughly documented.
This new compliance counsel position at the DOJ makes implementing and documenting the above steps all the more important. But it also gives companies a greater chance to avoid potential FCPA liability through a DOJ Declination to Prosecute if they can demonstrate they have an effective compliance program. With the announcement last week of the Yates Memo and the increased focus on corporate internal investigations to identify senior executives for prosecution, it is now even more important that companies have a robust compliance program in place. As Mike Volkov often says, the DOJ clearly communicates the direction they are heading. The message could not be clearer.
This article originally appeared in the FCPA Compliance and Ethics Blog.
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August 19th, 2015
By Thomas Fox.
How many Chief Compliance Officers (CCOs) and compliance practitioners out there have faced the following question from the General Counsel (GC), Chief Executive Officer (CEO), Chief Financial Officer (CFO) What does it do to enhance shareholder value? This is the question that is posed when senior management wants to deny resources to or even cut back the compliance function. At best the question is disingenuous and at worst it is simply a dodge by someone wanting to denude a corporate compliance function for their own nefarious reasons.
Michael Skapinker raised this second point, in a Financial Times (FT) article entitled “Shareholder value is a cover for over-mighty chief executives”. Skapinker further opines that this question also presages an inquiry into whether CCOs “are using the cover of shareholder primacy to put themselves first?” While he also condemned the disparity in the growth of senior executives salaries and true shareholder value, Skapinker worries about the lack of accountability of CCOs and how their actions can damage a company’s reputation.
So how do you respond to this query? I think there is an answer with which you can always respond when faced with a clearly hostile CEO or other senior manager. It is the following. A best practices anti-corruption compliance program, whether based on the Foreign Corrupt Practices Act (FCPA), UK Bribery Act or other anti-bribery law always enhances shareholder value. The reason is quite simple. It is all about tightening up the internal controls to prevent bribery and corruption.
However the part that such CEOs or other senior management may not understand is that FCPA internal controls are largely financial controls. Such controls are in place not only to comply with laws but also to provide internal oversight on how money flows out from an organization. The better the internal financial controls the better run a company will be in both the short and long term.
Most readers are familiar with Ethisphere’s annual designation of the World’s Most Ethical Companies. Many commentators deride this list because many of the companies on the list have gone through a FCPA investigation or enforcement action. Even with that factor, one of the things that Ethisphere touts about this list is that the companies on it routinely outperform the Standard & Poor’s (S&P) Index in annual performance. I thought about this seeming anomaly for a long time, wondering how ethical companies could be in the midst of FCPA investigations and be on a most ethical list.
The reason these companies are on the list is that they have better financial controls and by having better financial controls, these companies are more generally better run. Think about financial controls around employee expense reimbursement as an example. These are in place to satisfy Internal Revenue Service (IRS) rules to demonstrate the business purpose of employee travel, entertainment of customers, hospitality for potential customers and similar business expenses. Now consider this IRS requirement overlaid with a FCPA compliance requirement.
Not only do you need to record the foreign government officials (or not) that you entertain, you need to document the expense incurred and the business purpose. If the expenses were predetermined to be over the amount set in your compliance policy, you may require compliance department pre-approval. When an employee submits an expense reimbursement form, there is usually a signature or self-attestation required. Then the employee’s supervisor, and perhaps one level above, must approve the reimbursement request before it even gets to Accounts Payable (AP) for a financial and procedure focused review.
All of these steps are financial controls yet they operate as internal compliance controls as well. If the controls are enforced the compliance function would have a searchable database to test employee expense reimbursement requests to see if any anomalies appear which should be set aside for further investigation. Imagine how GlaxoSmithKline PLC (GSK) might have fared if it had properly assessed its Chinese employee reimbursement requests to determine if the employees had actually put on the events for which they claimed reimbursement.
The same financial control analogy is true for the other key steps in any best practices compliance program. Management must communicate the message regarding doing business in compliance down to the troops. This message should be formalized in policies and procedures to set expectations of behavior. Then there should training on these educations and a person or function sufficiently resourced to run it.
Next there should be incentives to do business in compliance and sanctions for those who fail to meet the set expectations and an appropriate reporting mechanism for internal reporting of compliance violations. Any best practices FCPA compliance program would also have a risk assessment, management of third parties and a mergers and acquisition (M&A) component. Finally, all of these concepts should be memorialized through internal controls that are designed, implemented and tested for effectiveness.
So the next time one of those senior management types asks you what the compliance function does or even what an expenditure that you want to incur will do to increase shareholder value, you can not only point him (or her) to the Ethisphere Most Ethical Company list but you can dive down to the specific level of your company and point directly to one of the above concepts around internal controls, which are really financial controls, to make your company not only run more efficiently but also provide appropriate levels of oversight.
The more effective your compliance controls are the better run your company will be and that will most certainly enhance shareholder value.
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January 3rd, 2014
By Thomas J. Fox.
In an article, entitled “GSK China probe flags up wider worries”, in the Wednesday edition of the Financial Times (FT) reporters Andrew Jack and Patti Waldmeir discussed the ongoing bribery and corruption scandal involving the UK based pharmaceutical company, GlaxoSmithKline PLC (GSK). They detailed many of the allegations which had been previously made public against GSK, the effect of these allegations on the company and some of the company’s responses to this crisis. It was an excellent summary of where this story has been and where it might be going.
The accusations against GSK have been well publicized. The company has been accused, by its own Chinese employees on national television, of being the “big boss in a criminal partnership” and paying up to $500MM in bribes to officials and doctors. While there certainly has been speculation as to the motives of the Chinese officials in bringing these allegations, the article noted that these allegations certainly raise questions about “GSK’s own conduct and the responsibility of its senior management” and whether the company’s compliance systems were inadequate or the company “turned a blind eye” to the corruption by its Chinese operations. The article did note that Chinese investigators do not yet know how high up the complicity in GSK may have gone or whether the company simply suffered from “poor compliance”.
Interestingly the article discussed not only the endemic nature of corruption in China but how, in many ways, the Chinese health care system is based on such corruption. The piece quoted George Baeder, an independent drug industry advisor, for the following, “Financial flows – both legal and illegal – tied to drug and device sales are funding perhaps 60-80 per cent of total hospital costs. Without this funding, the current system would collapse.” Further, “central and provincial Chinese governments cannot afford to pay doctors a living wage, and may patients cannot afford to pay the true cost of care.” And finally, “Up to now, Beijing has turned a blind eye as pharma companies find ways to subsidise doctor salaries and underwrite their medical education.” How about that for structural corruption?
Intertwined with this structural issue is the problem of the quantity and quality of the drug supply. Many Chinese doctors do not feel that there is an acceptable alternative to foreign pharmaceutical products. This drives up the cost of prescribed medicines as this quantity is therefore limited. But even where indigenous Chinese generic drugs are available as alternatives, many patients do not trust these medicines. This restricts the quality of drugs available. Sort of an economist’s Rubik’s Cube.
But just as market principles can drive other corporate behavior, the fact that by 2020, the drug sales in China are estimated to top $320bn; it is simply too large a market for companies to ignore. The same is true of the Chinese government, which is currently in year 5 of a 12-year healthcare reform plan, part of which is to drive down medical costs to bring “quality affordable care to 1.3 bn” Chinese citizens. So, as the article notes, GSK and “other pharmaceutical companies are bracing for price cuts ahead and the need to be ever more cautious on their practices in emerging markets as well as more industrialized ones.”
GSK has attacked part of its corruption problems by instituting a compensation program which is designed “at removing incentives to sales staff that encouraged excessive marketing, strengthened transparency and cutting funding to doctors.” Specifically, the company announced the decision to “stop paying speakers’ fees and travel expenses for doctors attending medical conferences by 2015.” For the changes directed at its own sales staff, GSK has said that “Individual sales targets in the remuneration of marketing staff are to be replaced by broader measures of the quality of information they provide to doctors and a link to company-wide performance.”
China is not the only company in Asia or other continents which have socialized medicine. I have opined that the GSK corruption scandal in China is the biggest news in anti-corruption and anti-bribery enforcement in 2013. I believe this because I think that other countries may look at the Chinese model and draw the lesson that it is western companies, not their own structural corruption, which causes the problems. I put this question to Amy Sommers, a partner at K&L Gates Shanghai office and asked her opinion. She replied:
Prior to 2013, when I spoke to Western audiences about anticorruption enforcement risks and mentioned the importance of China’s commercial bribery enforcement as a risk factor in its own right, as well as a potential catalyst for broader enforcement, the message didn’t seem to resonate. With the booming echo of the DOJ’s and SEC’s active FCPA enforcement efforts in the past 8 years ringing in their ears, it’s perhaps understandable that that message was drowned out. As we approach the end of 2013, I think your characterization of China’s action as a game-changer is on the money. Today companies are evaluating China-initiated enforcement as a factor to be considered in their compliance efforts.
China’s initiation of this case has been a success for China on various levels, so there’s no question that there will be others brought. The industry that the Chinese government has said publicly that it intends to tackle next is medical devices, but we should not assume that that will be the end of the journey. Moreover, the question that is still unanswered is whether other jurisdictions in Asia Pacific will elect to emulate China’s example. Some news sources have reported that Asia Pacific-based regulators have expressed that intention, so I suspect they will: going after alleged corruption in the interests of protecting consumers is a desirable aim. So, while for the moment companies seem to focusing on getting their China compliance house in order, it might be advisable to broaden that effort to other locales in Asia where there is a combination of strong economic growth and relatively high perceived corruption risk.
So in addition to the admonition of Bette Davis that you had better buckle up because it is going to be a bumpy night, any western company doing business or considering doing business in China needs to understand that there are not only direct risks of corruption but also structural defects which may make it endemic. Be careful out there.
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, 2013
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May 24th, 2013
By Thomas J. Fox.
Putting a compliance policy into practice is not something that most companies do very well. How do you get buy-in for a new or amended compliance policy? How do you determine if a new compliance policy contradicts anything that you currently have in your compliance policy portfolio?
When thinking about such questions regarding compliance policies I am reminded of four questions posed by Stephen Page, in his book “Achieving 100% Compliance Of Policies and Procedures”, wherein he poses the following questions: (1) What is the nature of the policies owner’s function? As these are compliance policies, they are critical to a company doing business in compliance with relevant anti-corruption/anti-bribery laws such as the Foreign Corrupt Practices Act (FCPA) and UK Bribery Act. (2) What is your organization’s overall vision and mission? This question speaks to management’s commitment to doing business ethically and in compliance with legal requirements. (3) What is the content of the policies? This speaks to the connection of the policy goals with other incentives, such as compensation and promotion. (4) What is your company’s receptivity to the policy? This question speaks to training and communication so that employees will understand not only the underlying reason for the policy but drive adherence to the policy.
These and other questions were explored at the recently concluded Compliance Week 2013 event in a session entitled “Case Study: Putting Policies into Practice at Dell”. Kristi Kevern, Director of Operational Compliance and Page Motes, Director, Strategic Programs Office – Global Ethics & Compliance from Dell Corporation, were the two panelists for the event. Kristi discussed how Dell overhauled its entire compliance policy management program and I will discuss her remarks in a later blog. Motes does not come from a compliance background but came from business development. I found her perspective quite different from the usual compliance perspective. From where she sits, she recognizes the need to internally market a new compliance policy; however this marketing plan must begin at the inception of a compliance policy and not after it has been drafted.
Motes said that it is incumbent to obtain buy-in from the business units before a compliance policy is drafted because, after all, it is the business units which will implement a compliance policy. This begins with a business unit sponsor who should have ownership of any new compliance policy. After the initial draft is made, it should be circulated to make sure that the compliance policy is workable and that it is translated from legalese (or accounting-ese) or other technical jargon into plain English. She said that is one of her key roles.
The next step is the internal market. Here Motes believes that a key is to move away from words such as ‘ethics’ to words that denote behaviors. She said that her group would talk about trust, honesty, respect, judgment and responsibility. After rollout the compliance group must train on the new policy and then monitor to ensure that it is followed. Finally, there must be some consequences to an employee if they are trained but fail after multiple warnings to follow a policy.
I thought about Motes’ ideas when I read a recent article in the June issue of Fast Company magazine, entitled “Starbucks’s Leap of Faith” which discussed the company’s rollout and approach to innovation. One of the examples in the article was when Starbucks rolled out its mobile application to allow customers to pay through their smart phones. The company worked with staff on proto-types, then trained and followed up with interviews to determine how the new system was working. Recognizing that there were technical glitches to overcome, the company persevered. Ryan Records, Vice President of Payments, was quoted as saying “it became seamless and flawless and an elegant way to pay” and that payment method now accounts for roughly 10% of the company’s total pay each day.
The Starbucks story drove home to me the key message from Motes. You must work with the business units to operationalize any policy. While it is true that a compliance professional will be the subject matter expert on the requirements of what should go into a compliance policy, but it is equally important on how that information is imparted and getting employees to care about the policy. Page puts it in a slightly different light. He said “From a systems viewpoint, it is often the organization’s infrastructure, and not its people, which is rigid and inflexible, often leading to angry and frustrated employees. If people cannot approach problems, talk openly, or give opinions, then this prevailing attitude can cause withdrawal and people who do not care. The clearer the tie between what an organization is doing and the results, the more energy, commitment, and excitement they will generate during a change process.” I think the latter sentence is what you need to strive for in the realm of compliance policies.
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.
Original Link: http://tfoxlaw.wordpress.com/2013/05/23/getting-employees-to-care-about-a-compliance-policy/
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May 4th, 2013
By Thomas J. Fox.
Do you really know who you are doing business with in your supply chain? How much due diligence is enough? Should you update your due diligence on a regular basis? How about on a continuous basis? What ethical considerations come into play in the manufacturing sector, in the supply chain? These questions, and perhaps more, came to me as I was reading about the recent tragedy in Bangladesh involving the collapse of Rana Plaza. At this time, there are 433 confirmed dead and police report that 149 people are still missing in what has become the worst disaster for Bangladesh’s $20 billion-a-year garment industry. The collapsed building was built and owned by Mohammed Sohel Rana, he was not the owner of the factories that operated in Rana Plaza; he was simply the building owner and landlord and, therefore, is legally required to provide a safe structure
In an article in the New York Times (NYT), entitled “The Most Hated Bangladeshi, Toppled From a Shady Empire”, reporter Jim Yardley wrote about Mr. Rana’s rise to power and the problems that companies face when trying to do the right thing regarding corporate social responsibility in general, and bribery and corruption specifically, in the supply chain. This problem has become much more public for clothing companies who purchase finished goods from countries like Bangladesh. This is because even if you know who you are directly contracting with, your company may not know the subcontractors or your direct counter-party and you probably have no chance to know who the building owner or landlord might be. Finally, how can you determine if the building where your products are being produced meets minimum building code standards or is even safe to work in at all?
Rana Plaza was originally designed as a five story building. Yardley’s article details the methods that Rana used to secure the land and the permits to construct the building. Yardley reported, “To build Rana Plaza, Mr. Rana and his father bullied adjacent landowners, the landowners themselves say, and ultimately took their property by force. His political allies gave him a construction permit, despite his dubious claims of title to the land, and a second permit later to add upper floors that may have destabilized the building.” After the building was completed Mr. Rana successfully leased “out the existing five floors and gotten a permit from the local mayor, a political ally, to build additional floors. Mr. Khan, the former mayor, said this practice created serious risks, since officials were handing out permits, often for bribes, without insisting on the necessary safeguards.”
On the day before the building collapse “Workers on the third floor were stitching clothing when they were startled by a noise that sounded like an explosion. Cracks had appeared in the building. Workers rushed outside in terror. By late morning, Mr. Rana’s representatives had brought in Abdur Razzaque Khan, an engineer. Taken to the third floor, Mr. Khan examined three support pillars, and became horrified at the cracks he found. “I became scared,” Mr. Khan said. “It was not safe to stay inside this building.” He rushed downstairs and told one of Mr. Rana’s administrators that the building needed to be closed immediately. But Mr. Rana was apparently not impressed; he was holding court with about a dozen local journalists.”
Yardley quoted another journalist, Shamim Hossain, a local newspaper reporter, who reported that Mr. Rana said, “This is not a crack. The plaster on the wall is broken, nothing more. It is not a problem.” Unfortunately the next day the building collapsed.
Rana had rammed five separate garment factories into his now eight story building. How many people were employed there? I don’t think anyone will ever know the true number. As for Mr. Rana, perhaps understanding his personal criminal exposure for these actions, he was caught trying to flee the country. He is now in police custody. He, of course, says it was the evil factory owners which caused the entire catastrophe.
If your company is a US or EU purchaser of such finished products, what should your response be? In another NYT article, entitled “Some Retailers Rethink Role in Bangladesh”, reporter Steven Greenhouse noted that the Walt Disney Company “in March ordered an end to production of branded merchandise in Bangladesh.” Greenhouse said, “Disney’s move reflects the difficult calculus that companies with operations in countries like Bangladesh are facing as they balance profit and reputation against the backdrop of a wrenching human disaster.”
But is this the right response? In an article in the Financial Times (FT), entitled “Business must lead in Bangladesh”, John Grapper wrote “The first thing western companies need to do is the simplest: to stay in the country and to keep providing jobs for women, not to withdraw because they fear being tainted by association. Despite everything, the industry provides better-paid jobs than the alternative – working on rural farms – and has helped to emancipate women.”
Gapper further argues that US and EU retailer collective action is the only thing which will force change upon a corrupt Bangladeshi government. He said, “The second thing brands and retailers must do is band together. The factories they directly oversee in export zones tend to be better run. But they exert weak influence over the contractors and subcontractors that comprise most of the industry. Retailers use auditors to inspect suppliers but lack the information or power to stop abuses. Rana Plaza shows the difficulties. Planning and building controls are lax in Bangladesh and there is no simple way to check whether a factory is properly built. Raising building standards is beyond the power of any single company – it needs concerted action.”
Many have argued that the US government in particular has no place in enforcing its version of morality, in the form of the US Foreign Corrupt Practices Act (FCPA). But rarely is the flip side of this argument discussed, that being where a business solution can help to end corruption. Gapper notes this reality with the following, “Collectively, companies could push the government to overcome the obstacles of corruption, hidden army influence and factory owners who double as politicians. They hold the buying power in a sector that makes up 13 per cent of gross domestic product.”
What is the cost of bribery and corruption? I think that we are seeing it played out daily in Bangladesh as each body is pulled out of the rubble of the Rana Plaza. As a US company, how can you manage your FCPA risk? Should you perform due diligence on your landlord? I do not think any US company would think more than a nano-second when answering that question if they were leasing office space for their own employees. But the tragedy at Rana Plaza does beg the question, how much due diligence is enough and how far is far enough down the supply chain?
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, 2013
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April 11th, 2013
Thomas J. Fox.
Today in history should be known as “End of Military Leaders Day” as not only is this the 199thanniversary of Napoleon’s exile to Elba (although he did make somewhat of a comeback) it is also the 62nd anniversary of Truman’s sacking of Douglas MacArthur (although MacArthur did get to address Congress). Whatever you think of these two men as human beings, you cannot under-rate them as great leaders of armies. They both were able to get men to achieve far beyond what they believed were their capabilities. I thought about great generals and other leaders when reading a recent article in the New York Times (NYT), Corner Office section where reporter Adam Bryant interviewed Dr. David Rock, in an article entitled “A Boss’s Challenge: Have Everyone Join the ‘In’ Group”. In this piece, Bryant highlighted some of the mechanisms which Rock, who is the director of the NeuroLeadership Institute (NLI), believes that it is important for managers to make employees feel like they are on the same team.
Generally speaking Rock believes that the brain categorizes everything into one of two categories: threat or reward. He thinks people are driven unconsciously to stay away from threat and are driven unconsciously to go toward reward. This decision about threat or reward happens five times every second. But this can all be very subtle as employees are making this decision about everything good or bad all the time. He has based this theory on research in the last 10 years or so which he believes demonstrates that things that create the strongest threats and rewards are social. Social threats and rewards activate what’s called the brain’s primary threat-and-reward center, which is actually the pain-and-pleasure center. This was a big surprise, to see that someone feeling left out of an activity, for example, would activate the same regions as if they had put their hand on a hot plate.
He breaks these concepts down with the acronym SCARF; which stands for status, certainty, autonomy, relatedness and fairness. I found that these concepts had some useful analogies for the compliance practitioner in not only how to engage employees, but also to have them buy into and become a part of a company’s compliance regime.
Status
Rock believes that status is your perception of where you are in the pecking order around you, and it’s a feeling of being better or worse than others. People feel uncomfortable until we work out our status with people. We are more comfortable and we’re more effective when there is a clear status arrangement between people. When we feel a higher status, we get a slight reward. When we feel lower status, we get a strong threat. The challenge is that if somebody continuously fights for high status, all the other people around them might be getting a strong threat response.
For the compliance practitioner, I think that the key here is to get out of the office and into the field. The more employees see you, the more they will move away from seeing compliance in an ivory tower and more towards compliance being part of the overall business process. This can also mean embedding compliance department members in high risk projects or high risk geographic areas. The more compliance is seen, the more comfortable employees will feel in bringing matters to you.
Certainty
Certainty is critical. Rock believes that the feeling of uncertainty feels like pain, when you can’t predict when the lights will come back on and you’re holding multiple possible futures in your head. That turns out to be cognitively exhausting. And the more we can predict the future, the more rewarded we feel. The less we can predict the future, the more threatened we feel. As soon as any ambiguity arises in even a very simple activity, we get a threat response. So we are driven to create certainty.
For the compliance practitioner, I think this is where the ‘we all wear the same color shirt’ concept is important. When compliance looks into something or looks at how processes are being followed in business units, it should not be perceived as a threat to employees but how to work better and more efficiently in the context of compliance.
Autonomy
For Rock, autonomy is a sense of control. While it is similar to certainty he believes that there are differences. Certainty is prediction. Autonomy is control. And it’s a very important thing for us to feel a sense of control, so much so that a small stress where you have no control generally is in fact a very big stress. When autonomy goes down, it’s a strong threat. So when the boss walks in the room, they’ve got the final say, so suddenly your autonomy goes down.
For the compliance practitioner, I think that setting clear expectations can help employees in this area. The more that they understand what is required of them the more that they understand their obligations. This includes any compliance component of evaluations or bonuses. The more you can explain, teach and educate, the more employees will recognize what is required of them.
Relatedness
Rock next spoke about ‘relatedness’ which he believes is the decision about each person we interact with, for example other employees, which impacts basic processing. This decision boils down to “Are you in my ‘in’ group or in my ‘out’ group?” If an employee decides that they are part of your “in” group, they will process what you say using the same brain networks as thinking your own thoughts. Conversely, if they decide they are in your “out” group, you use a totally different brain network. So the very level of unconscious perception has a huge impact based on the decision of: “Is this person similar to me? Are they on my team? Do we have shared goals, or are they in my out group?” This is also the same of teamwork and collaboration. It feels good to be with “in” group members. But we basically treat everyone as foe until proven otherwise, with the exception of really attractive people or if you’ve had a moderate amount to drink.
The important question for the compliance practitioner becomes, “How do we create an ‘in’ group for compliance?” If you can create shared compliance goals among people, you can create quite a strong “in” group fairly quickly. When you can find a shared goal, you turn an “out” group” into an “in” group. But this requires a company leader to create shared goals across an organization; otherwise an organization will be a series of silos.
For the compliance practitioner I think the domain where leaders can have the biggest impact is relatedness. Many people have had a boss they really wanted to work hard for because they respected them. It doesn’t have to be love, but it does have to be a sense of respect. And I think that those bosses have worked hard to have a sense of relatedness with people, which comes from having shared goals and making sure there’s a feeling of being on the same team, not a sense of “us” and “them.”
Fairness
The final one is fairness, Rock says that it is “very fundamental.” A fair exchange of anything is intrinsically rewarding. An unfair exchange of anything is intrinsically threatening – and not just threatening, but very intensely threatening. Fairness is about several things. First and foremost the compliance practitioner must treat everyone fairly, from the ‘board room to the shop floor’ so that if someone violates the compliance program they are promptly investigated and disciplined, if warranted. But it also means transparency so that employees understand what their obligations are and what rewards they will receive if they meet those obligations.
Bryant’s article has some interesting insights for not only compliance leadership but also for compliance engagement. While you may not get the blind devotion that Napoleon and MacArthur were able to engender, you may be able to obtain better buy-in and strength for your compliance program.
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, 2013
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