Lauren Connell, Managing Associate at The Volkov Law Group, joins us again for a posting about positive training — what you can do as opposed to what you cannot do. Her profile is here and she can be reached at firstname.lastname@example.org.
Your employees know that a suitcase full of cash given to a foreign government procurement officer to win a contract is a bribe and prohibited by the FCPA. That’s an easy one.
Most of your employees probably know that a $10,000 gold-encrusted crystal base given to a government procurement officer to win a contract is a bribe. That’s also a relatively easy one.
But what about a request by a sales manager to send a government official’s spouse $100 worth of flowers to congratulate her for a business accomplishment?
What about a request by a foreign government official for your company to foot the bill on putting a new roof over an elementary school at a local school?
When it comes down to it, many of these issues are decided not based on any hard and fast rule but depend on the presence of corrupt intent. How do you read someone’s mind to determine if the gift or action is given with intent to induce the recipient to act contrary to his or legal obligations as a government official?
The DOJ/SEC’s FCPA Guidance looks to measure the amount spent, the surrounding circumstances, the nature of the relationship and other factors to ascertain the actor’s intent. That is not an easy issue to resolve for lawyers, CCOs and others responsible for compliance.
These are the tougher questions; are your employees prepared to handle them? One of the biggest mistakes made in the compliance world is to train employees on what the law says instead of what the real world is going to say to them. Companies get so focused on telling their employees what they cannot do (“don’t give bribes,” “don’t give lavish gifts”) that they forget to tell their employees what they can and should do.
Employees should feel comfortable offering small gifts or other tokens of respect for potential clients. Employees can help your company function as a responsible member of the community, including supporting local charitable causes. Compliance cannot just be about what is illegal, it should also be about what is legal.
This approach should be reflected in your training program, and also your Code of Conduct and Anti-Corruption policy. To do business successfully you need to empower your sales force, not limit them. A compliance department that is always telling people no, no, no is going to be seen as an obstacle to get around instead of a value-added partner in the company’s united effort to grow and compete worldwide.
In a perfect world it would be possible to give everyone a copy of the FCPA’s anti-bribery provisions and say go forth and be successful while obeying the law.
But the world isn’t perfect. You need to train your executives, sales managers, and other employees how to operate in difficult business environments, and how to respond in situations that are not black and white. That requires more than basic anti-corruption training; it requires careful considering of the types of places your company does business and the types of questionable situations they might run into. There is no one-size-fits all for compliance training.
Helping your employees understand compliance from a real-world perspective is key to an effective compliance program and to ensuring that compliance becomes a part of growing the business instead of limiting it. A compliance training program that tells your employees what they can do (along with what they can’t) can also be a valuable competitive advantage. Employees and sales personnel who are confident in their understanding of the FCPA will do business assuredly and form more secure relationships with potential government customers. They will be confident in what they can do to improve their relationship with potential customers and the community instead of being scared of what they can’t do.
The compliance field has long suffered from focusing too closely on trying to fit the world into “wrong” and “right” boxes. Until your compliance program starts focusing on the real world and all the unique circumstances your employees might find themselves it will be seen as another out-of-touch mandate from a department more focused on blocking business than supporting it.