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The Key to Compliance: The Trenches

Everyone is full of advice on how to structure compliance programs.  Ask anyone in the FCPA paparazzi and they will tell you exactly what you need to do to make sure you have an effective anti-corruption compliance program.  There are as many answers as there are compliance professionals.

I can assure you that every compliance professional has forgotten the missing link – not Curly Q Link, but the essential aspect of every compliance program.  The crux of it all – the raison de’ tere — all boils down to this – think of the interactions which occur between your company and foreign government officials, and try and calculate or imagine in your mind every one of those interactions.  Each of them presents opportunities for improper payments, a motive and an opportunity to engage in bribery.  The incentive is there, and your job is to stop it – you cannot police every interaction, every meeting, every dinner, and every opportunity for improper behavior.

As the head of your company’s compliance program, your job is to make sure the message filters down to the trenches – to the specific interaction between the employee and the foreign government official.  How do you do that?  There are __ keys to making sure this message is communicated and integrated into every level of your company.

1.  Tone At Every Level of the Organization – forget tone-at-the-top, you need to spread the message of an ethical tone at every level of the organization.  Ethical conduct gives managers and employees a feeling of pride in their organization, in their job and in their day-to-day activities.  In every part of the organization, emphasize the importance of ethical conduct to the organization’s mission and to the employee’s evaluation.

2.  Employee Buy-In – make sure that communication and interpersonal contacts are emphasized.  Schedule as many meetings with business groups, listen with an empathetic ear to the business staff, try and address their concerns, make their jobs easier and then make sure you come through and help the business people to perform their jobs.  Compliance professionals need to be problem-solvers not Dr. Nos – make sure you help the business side to achieve.  Show them that compliance relieves them of worries and recognize that without the business people no one would be operating at the company.

3.  Address the Issues of the Trenches – candidly discuss issues which arise in the interactions between business staff and foreign government officials, identify the issues, and show them how you can solve their problems.  All too often compliance professionals speak in a non-confrontational theoretical language which has little bearing on the day-to-day activities of business professionals.  Forget the powerpoint slides which go through each element of an FCPA offense – throw them out, and start with the real world – here is what you encounter and here is why it is relevant, and here is how to deal with the issue to get through it.

4.  Demonstrate the Downsides – underscore how difficult and horrible an FCPA investigation can be for the company, the employee, and his or her family.  They need to understand the risks, the downsides and the implications of an FCPA investigation.  The risks need to be outlined – whistleblowers, undercover officers, and internal controls can catch them in illegal activity and the results are not pretty.  Your job is not to act as a law enforcement officer but your role is to protect every employee and the company from any investigation, meaning that if you do not engage in the conduct to begin with there is no risk to the company and the employee.

Compliance professionals and senior management are comforted when they have implemented a compliance program.  This is a false confidence.  Compliance means nothing until it is translated to the trenches in accordance with the above-outlined principles.

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