Star Trek Premiers And Hiring Practices Under The FCPA

by Thomas Fox
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Today is the 46th anniversary of the premier episode of the most iconic science fiction related television show during my lifetime – Star Trek. I am a self-confessed uber-trekkie and I can still remember watching the first episode, The Man Trap. So here’s to you, all the crew members of the Starship Enterprise, you have had a great run and I can only hope it keeps going on yet another five year mission “Where no man has gone before.”

I.                   JP Morgan’s Hiring Practice Inquiry

Last month the New York Times (NYT) reported that JP Morgan Chase is under Foreign Corrupt Practices Act (FCPA) scrutiny in China for its hiring practices. In an article, entitled “Hiring in China By JPMorgan Under Scrutiny”, reporters Jessica Silver-Greenberg, Ben Protess and David Barboza broke the story that the Securities and Exchange Commission (SEC) is investigating JP Morgan Chase to determine “whether JPMorgan Chase hired the children of powerful Chinese officials to help the bank win lucrative business in the booming nation.” The article is based upon “a confidential United States government document”.

The article details several situations where JPMorgan hired the children of Chinese government officials and sometime thereafter the bank was able to secure work from the business or industry of a parent of a hired employee. The examples included the hiring of a “son of a former Chinese banking regulator who is now the chairman of the China Everbright Group, a state-controlled financial conglomerate, according to the document, which was reviewed by The New York Times, as well as public records. After the chairman’s son came on board, JPMorgan secured multiple coveted assignments from the Chinese conglomerate, including advising a subsidiary of the company on a stock offering, records show.” In another instance, the bank hired the daughter of a Chinese railway official. After hiring the daughter, JP Morgan was hired to assist the company to go public.

Things got worse when Dawn Kopecki, in a Bloomberg article entitled “JPMorgan Bribe Probe Said to Expand in Asia as Spreadsheet Is Found”, reported that there was “an internal spreadsheet that linked appointments to specific deals pursued by the bank”.  She noted that the original investigation, which began in Hong Kong, has now been expanded to other countries in Asia and that JP Morgan “has opened an internal investigation that has flagged more than 200 hires for review, said two people with knowledge of the examination, results of which JPMorgan is sharing with regulators.” Kopecki quoted Dan Hurson, a former US prosecutor and SEC lawyer who runs his own Washington practice, who said that the “SEC will hunt for evidence showing “these weren’t real jobs, that they were only there because their father or mother were important public officials”; and “If the public official requested the job for the child, that would be a strong indication to the company that the official was seeking and receiving something of value.” Perhaps more damaging was that the spreadsheet had information which apparently linked “some hiring decisions to specific transactions pursued by the bank.”

In a later NYT article, entitled “JPMorgan Hiring Put China’s Elite on an Easy Track”, Jessica Silver-Greenberg and Ben Protess further reported that the JP Morgan hiring program even had its own name, which was ‘Sons & Daughters’. Although the program was originally set up to provide transparency and visibility into the hiring process which might implicate FCPA issues, they reported that it went badly “off track”. Under the Sons & Daughters hiring program, a two-tiered track was created in the hiring process; one for regular applicants and one for children of Chinese officials. However, as time passed the program began to be used to allow for fewer job interviews and relaxed hiring standards for the candidates in the program. This allowed the company to hire some candidates who had “subpar academic records and lacked relevant expertise.”

II.                Steps for the Compliance Practitioner

For the compliance practitioner, the first thing to note is that there is no per se prohibition against hiring the son or daughter of a foreign government official. As noted by the FCPA Professor in the original NYT article, “While the hire of a son or daughter itself is not illegal, red flags would be raised if the person hired was not qualified for the position, or, for example, if a firm never received business before and then lo and behold, the hire brought in business.” In a blog post entitled “Regarding Princelings And Family Members” the FCPA Professor cited three Opinion Releases; 82-04, 84-01, and 95-03 where the Department of Justice (DOJ) looked at the hypothetical facts presented around the hiring of a family member of a foreign official as an agent or representative and found that the facts as presented, did not give rise to a FCPA violation.

Mike Volkov, writing his Corruption, Crime and Compliance blog, in a post entitled “All in the Family: Enforcement Focus on Hiring of Relatives of Foreign Officials”, said that “The issue boils down to corrupt intent – was the hiring made with the intent to improperly influence a government official?  That is not an easy question to answer since no one is a reader but the facts surrounding the hiring can certainly give some insight into what the company’s actor was intending when the relative was hired.” He cautioned that the task of the compliance practitioner is to (as I refer to it) ‘dis-link’ the hiring decision by the company from the obtaining or retaining of business from the foreign government official concerned. Volkov listed ten key questions which need to be addressed in the hiring process.

  1. Who, if anyone, at the company is sponsoring/supporting the applicant?
  2. How did this applicant come to the company’s attention?
  3. What is the applicant’s relationship to the foreign official?
  4. What involvement, if any, has the foreign official had with the company relating to the applicant’s interest?
  5. In which office/division does the foreign official serve?
  6. How important is this specific office/division to the company’s business relationship with the foreign government?
  7. Is the applicant qualified for the position that he/she has applied?
  8. Has the applicant (or will the applicant) be subject to the normal hiring process?
  9. Has the company completed a due diligence review of the applicant and the foreign official to identify any corruption risks?
  10. Has the company or any representative provided any assurance to the foreign official or the applicant that the applicant will be hired?

I would add that the follow up to Volkov’s points is that all decisions made must be documented. This means that all information regarding the hiring process needs to be kept in a repository which can be called up for review if called upon by a government regulator. I have often said that your company’s HR function needs to be a key component of your overall FCPA compliance program and the JP Morgan investigations reinforces that need. So if you need to provide more compliance training to your HR department on this issue, now would be an excellent time for you to do so.

How does all of the above tie into the premier of Star Trek? Easy – do not get caught in the trap of hiring in violation of the FCPA when some simple and frankly necessary steps can help keep you out of hot water. And while doing that click here for a YouTube video of the iconic opening theme from Star Trek.

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

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