[author: Andrea Falcione*]
Reporting is one of the critical elements of any compliance program, and having more reports is usually a positive—even though it may not always feel that way to us as compliance practitioners. It bears noting that:
Culture is always a foundational issue.
While some roadblocks are common, some may be unique to your organization.
It’s important to assess why people may resist reporting and then address the root cause(s).
Data is key in assessing the effectiveness of your speak-up program.
Channels, processes, and protocols for your speak-up program
Often the speak-up process at an organization is designed for the ease of the administrators rather than the reporters. Do what you can to make it easy! You have a lot of control here—or you should.
Encourage multiple ways to raise issues. Some examples include the home page of your internal website, QR codes, hotlines, internet forms, open-door programs, and more. Having multiple intake methods makes the job of administrators more challenging. But that’s okay because, ultimately, it isn’t about us as compliance practitioners—it’s about our constituents. Also, given global cultural differences, the more options you provide, the better.
Prioritize the friendliness of the process and understand the importance of following up and checking in with reporters. Reporters who have a good experience can become unwitting—as opposed to unwilling—ambassadors for your program, which is the best kind of (free) advertising.
Focus on organizational justice, which—though paramount to gaining and keeping employee trust—is often very hard to achieve. There are several elements to organizational justice:
Respect: Where all participants are treated with respect and dignity.
Voice: Where all participants are heard and given a chance to tell their stories.
Neutrality: Where decisions are unbiased and based on fact and sound reasoning.
Transparency: Where there is openness in process and outcomes (more to come on that in a bit).
Cultural impacts on your speak-up program
Management consultant, educator, and author Peter Drucker famously said that “Culture eats strategy for breakfast,” meaning an organization’s culture is the single most important factor in its successes and its failures. A strong risk and compliance infrastructure, including a speak-up program, is a necessary—but not a sufficient—basis for a truly effective compliance program. Culture matters, too.
It’s imperative to remember that culture differs across the globe. Company culture may also vary from team culture, which could differ from individual employee culture. And all those cultural differences could affect employees’ willingness to speak up. For example, in Latin American countries, speaking up may be perceived as a betrayal. In certain European countries, there may be fear associated with speaking up as a residual effect of World War II. And, in the United States, whistleblowers are often branded as “snitches.” Unfortunately, while you can likely impact culture, you may have less control over this piece.
Retaliation—or the perception of it—is the biggest cultural roadblock to speaking up, and regulators, including the U.S. Department of Justice (DOJ), have taken notice. So, what can you do to address this potential roadblock? Here are a few ideas:
Add retaliation risk to your compliance risk assessment.
Educate employees, managers, and other support functions about identifying and handling retaliation.
Review retaliation allegations and cases with human resources (HR) and the business, as appropriate.
Prepare an anti-retaliation communication plan and communicate often.
Partner with the business to develop a retaliation risk monitoring plan, and partner with internal audit to establish a retaliation audit plan.
Use surveys or focus groups to understand roadblocks. Mergers and acquisitions, corporate restructuring, and reductions in force all make an impact. If trust is an issue, you may need to bring in someone from the outside who can assist with anonymity in information gathering. Surveys are often helpful but consider if there is “survey fatigue” or whether people don’t believe their answers will be anonymous. Another option? Embed a survey seamlessly into a required training initiative. And never underestimate the importance of “walkaround compliance”—it’s amazing what people will tell you if you just ask.
Transparency in your speak-up program
At Rethink Compliance, we always advocate for transparency in both processes and results. The more your employees understand your speak-up systems the better.
Transparency as to process is easy. Explain the process to everyone—especially different types of discipline, various intake methods, confidentiality (and limitations to it), and anonymity. You can describe and illustrate your speak-up processes in your code of conduct/ethics, process flow charts, job aids, and other awareness tools. One organization we’ve worked with encouraged its country presidents to record a video about the reporting process. That initiative, together with other focused efforts, led to a fivefold increase in the number of reports received.
Transparency as to results is much more difficult. In its March update to the Evaluation of Corporate Compliance Programs, the DOJ asks the following:
“In circumstances where an executive has been exited from the company on account of a compliance violation, how transparent has the company been with employees about the terms of the separation?
“Are the actual reasons for discipline communicated to employees in all cases? If not, why not?”
“Are there legal or investigation-related reasons for restricting information, or have pre-textual reasons been provided to protect the company from whistleblowing or outside scrutiny?”
Clearly, the DOJ expects transparency as to outcomes—so it’s time to start, despite what your organization’s employment lawyers may think. Without that transparency, breaking through some of the roadblocks noted above is nearly impossible—specifically, a lack of trust. At the very least, share high-level speak-up data (e.g., volume of reports, types of alleged misconduct, substantiation rates, continuous improvement actions) with your employees. The next step is to publish redacted, real-life cases. And the best case is actually informing reporters what happened as a result of their efforts.
Be sure to proactively address tone and cultural issues when people leave your organization. Otherwise, your employees may lose faith in your reporting systems. Awareness within HR is also essential. And when an ethical lapse leads to severe consequences, it’s in your organization’s best interest to talk about it. After all, everyone else will be talking about it, especially if it makes the news cycle.
Data analytics for your speak-up program
It’s time to talk about collecting and analyzing data. (I know, I know—data analytics again!) You may wonder why I’ll address data analytics in an article called “Fostering a speak-up culture: A practical primer.” Because the DOJ expects analysis, testing, and monitoring—that’s why!
Typical speak-up data to track include the items noted above—that is, volume of reports, types of misconduct alleged, substantiation rates, and continuous improvement actions—in addition to reports at the department/manager/location level, anonymity rates, findings, discipline administered, consistency in discipline, and root cause. Collect data from the beginning to the end of the process—where reports come from, what groups are leading investigations, when are reports assigned to investigators, how are investigations proceeding, when and how are findings delivered, what actions are agreed upon, and when are corrective actions completed. Use this information to identify opportunities for process improvement.
That’s all very important data to track, analyze, and understand, but most of these items represent activity metrics—and activity metrics and data analytics are actually quite different. True data analytics involves examining and correlating multiple data sets (including activity metrics) across different platforms and initiatives to draw conclusions and gain actionable insights. True speak-up data analytics might include evaluating data from your hotline and other intake systems and comparing it to/synthesizing it with your training data, cultural survey data, compliance resource data, and code and policy data, to name a few.
Also, keep in mind that high-level data is good for reporting to management; however, detailed data is necessary to monitor your speak-up program’s effectiveness and look for meaningful trends. Be sure you have access to all the data you need. A few things to note:
Data siloes can be an issue. Consider who “owns” the data you need—whether it’s HR, finance, internal audit, IT security, legal, and/or your lines of business.
For all those teams to be comfortable sharing data, you may need a cross-functional group to provide oversight.
Managers are a large source of data loss. Help them understand the importance of passing on reports instead of trying to resolve certain issues themselves.
There are two ways to gather the information you’ll need to fully understand the efficacy of your speak-up program: quantitative (survey results and other data sets) and qualitative (focus groups, interviews). Both are valuable, and both are important for you to understand the full picture.
Messaging about your speak-up program
Use persuasion and influence techniques to advertise your speak-up efforts. Information alone won’t change behavior—you must make your audience care! Start with audience insights. Learn what matters most to your audience instead of focusing on what matters most to you. And remember that there isn’t one audience at your organization; instead, there are probably dozens of audiences, each with different wants, needs, and frustrations. Learn how these dispersed audiences communicate and how they prefer to receive information. Employ multiple ways of communicating across functions, lines of business, and geographies.
Ask, “What’s interesting here?” In 2023, only the strongest, most interesting content survives. Your messaging must be catchy, engaging, and well-crafted. For example, try connecting to people’s emotions or try humor if it works in your company culture. Feedback loops are a powerful tool when crafting your messages—people support what they help create or influence. Once you know your audience, you can put your messages in their terms. Be concise and, conversely, say it again—messages are more effective when repeated. Take advantage of how the human brain works to make your message “sticky.” There’s no such thing as overcommunicating in this area!
Think in terms of communication campaigns, which can also help overcome cultural issues. (Note, however, that campaigns aren’t likely to work if an underlying cultural issue has not been addressed.) A communication campaign designed to foster a speak-up culture might include videos, posters, infographics, stickers, screensavers, video conferencing backgrounds, and more.
Targeted awareness initiatives can be useful when certain groups or locations are a concern or if operations are very different across the globe. One organization with which we’ve worked created a campaign package when implementing a new compliance helpline—and then left it to country management to adapt and implement the messages as appropriate to their regions. Manager tool kits and annual communications plans are also helpful. Finally, remember to assess the effectiveness of your speak-up messaging as well.
I hope these tips are helpful as you work to foster a speak-up culture at your organization.
Impressions—first, last, and in-between—matter.
Start at the beginning: Nail the basics, then tackle bigger challenges.
Identify roadblocks and address root cause(s).
Activity metrics alone won’t suffice. Use true data analytics to draw inferences.
Keep your speak-up messaging fresh and frequent; messaging should motivate—not just remind.
*Andrea Falcione, is Chief Ethics and Compliance Officer and Head of Advisory Services at Rethink Compliance LLC in Westminster, Colorado, USA.
1 U.S. Department of Justice, Criminal Division, Evaluation of Corporate Compliance Programs, updated March 2023, https://www.justice.gov/criminal-fraud/page/file/937501/download.