Keep Your Hand On The Control

by Thomas Fox
Contact

#14748 Hand on the Throttle by Karl-Heinz Morawietz 2011-01-27Yesterday Nelson Mandela’s casket was driven to the state capital where he will lay in state until his funeral on Sunday 15th December. Dignitaries from all over the world will attend. Mandela was praised for his non-violent approach to ending apartheid in South Africa and his leadership in the peaceful transition of power. But he was also recognized as incorruptible. So today we honor that aspect of his career.

I am continually amazed at the seemingly disparate current events which provide tangible lessons for the compliance practitioner. In an article in the New York Times (NYT), entitled Hearings on San Francisco Crash Set to Explore Broader Problems, reporter Matthew L. Wald wrote about the upcoming National Transportation Safety Board (NTSB) hearings on the deadly plane crash last July at San Francisco International Airport. Investigators quickly were able to determine the immediate cause of the crash; that being the pilots failure to monitor their airspeed. However these hearings will go further and try to determine more basic reasons which led to the pilots to make the decisions which caused or contributed to the disaster.

The first was an over-reliance on technology. Crews for the airline involved, Asiana, are “accustomed to programming the autopilot to land their planes” rather than manually taking over during the landing procedure. The first problem was compounded and became disaster when a second problem apparently arose which was that the pilots had “evidently limited ability to manage the ubiquitous automated systems in the cockpit.” So they flew expecting the auto-pilot to land the plane but did not realize or appreciate that the auto-throttle portion of the system was in the off position. The article was clear that, even with these reasons, the problems which led to the crash were “more broad than bad pilots.”

The reliance on technology or big data has become an issue in the Foreign Corrupt Practices Act (FCPA) or other anti-corruption laws such as the UK Bribery Act. The Department of Justice (DOJ) has brought up the tool of transaction monitoring as a best practice at least since the Morgan Stanley Declination. But, just as these tools are important to the compliance practitioner, it is important to keep in mind that one of the remedies certain US based airlines have come up with will make it harder for crews to overlook problems like low airspeed, even when a plane’s auto-pilot is turned on during a descent. The solution is elegant for its simplicity, certain airlines mandated that “a pilot keep a hand on the throttle, to sense its position, during descent.” Simple, elegant and cost effective I would add.

For the compliance professional this also means a compliance program is more than simply about numbers and systems. As Paul McNutly and Stephen Martin say in their five essential elements of an effective compliance program, it is important to not only understand but ascertain if your employees are staying with the compliance program. Even after all the important ethical messages from management have been communicated to the appropriate audiences and key standards and controls are in place, there should still be a question of whether the company’s employees are adhering to the compliance program. Two of the seven compliance elements in the Federal Sentencing Guidelines call for companies to monitor, audit, and respond quickly to allegations of misconduct. These three highlighted activities are key components enforcement officials look for when determining whether companies maintain adequate oversight of their compliance programs.

The next area that the NTSB hearings will look at is training and procedures. One thing that US pilots are trained on and given a wide berth to do is to “speak up if they sense a problem, even if the pilot at the controls has seniority, and to listen to subordinates.” Recognizing that part of the issue here is cultural, because South Korean crews “have had trouble with those procedures”,  the clear message here is training. For the compliance practitioner, the message is also clear, again it is training, training and training. Whether you call it a ‘Speak Up, Speak Out’ or ‘Raise Your Hand’ culture, such a system must be put in place to allow an employee who senses a problem to get that information to people who can take a more focused look at the problem.

But, more than training, the company has to commit to more than having a system. The company must commit to listening. One of the biggest changes in the airlines cockpits is that more senior pilots are instructed listen to junior pilots. The same must be true in a company. The company has to listen to employee concerns. This requirement to listen has been made even stronger with the Dodd-Frank Whistleblower provisions. But the clear message for the compliance practitioner is that speaking up and listening are a two-way exercise.

Just as in every catastrophic accident, in almost every circumstance regarding a compliance issue which becomes a FCPA violation, there is at some point a situation where an employee did not report a situation or event up to an appropriate level for additional review. This failure to escalate led to the issue not reaching the right people in the company for review/action/resolution and the issue later became more difficult and more expensive to deal with in the company. This means that a company needs to have a culture in place to not only allow elevation but to actively encourage elevation. Additionally, both a structure and process for that structure must exist. Lastly, while a whistleblower process or hotlines are necessary these should not be viewed as the only systems which allow an employee to escalate a concern. In the cockpit it means a junior pilot can speak directly to a more senior pilot.

One of the things that I have learned practicing compliance is that process is very important. But the investigation into the Asiana crash shows that keeping your hand on the throttle to understand the pulse of things is a very good technique to maintain.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Thomas Fox, Compliance Evangelist | Attorney Advertising

Written by:

Thomas Fox
Contact
more
less

Compliance Evangelist on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.