qtq80-DIi8N8I end my week based upon recent obituaries by focusing on one from late 2015 that has been the most significant to me in the year of 2016. It was that of my father, Dr. Milden Jean Fox, Jr., who passed away on this date one year ago. He was born in 1926 and was part of what we rightfully call the “Greatest Generation”. We call them this for a whole host of reasons, not in the least their collective fight against the forces of evil in the world. Name any right you hold sacred as an American and the men and women of that era fought to defend it. Right to vote, freedom of expression, freedom of religion, are but a few. However, there are many other rights that you might not think of that we owe to these men and women who fought and sacrificed for us during this conflict.

My father was a university professor and labor arbitrator. He firmly believed that working people should have due process regarding their jobs and as an arbitrator he put that belief into practice by requiring companies who terminated employees to follow the due process requirements of termination for just cause. Put another way, if an employer is going to deliver a penalty sanction in the workplace, in the form of job termination, it must do so fairly and justly. This does not prevent management from exercising its rights or running its business. At a bare minimum, it means that a company must have an agreed upon disciplinary process in place and that process must be followed if the company is going to terminate an employee. A company must investigate and it must allow an employee to tell his or her side of the story, the employee must have the right for union or other representation in the process and someone other than the original decision maker must make the final appeal of any termination. In other words, an internal control.

Today we call this the Fair Process Doctrine. One of the American freedoms we enjoy today is this right of work place justice because of women and men like my father. This concept is so important and so universal that it permeates many facets of the workplace today, specifically including the realm of anti-corruption compliance. I often write about the Fair Process Doctrine as it relates to a part of any best practices compliance program, such as internal investigation and discipline. From my father’s perspective, if a company wanted to terminate or in any other way discipline an employee, they had to follow a prescribed process. Follow that process and he would almost always uphold a company’s decisions. Fail to follow the process and the employee would be required to engage in remedial action.

However, this concept is now a part of the broader concept of institutional justice. Companies that seem to get into the most trouble are those that lack this basic concept. It means more than simply fair and equitable treatment; it requires employees concerns, once raised, be listened to and addressed, all without the fear of retaliation. Wells Fargo is the most recent and best example. At the company many former whistleblowers allege they were terminated for raising concerns internally that the fraudulent account-opening scheme was a violation of the company’s Code of Conduct or even illegal. Such whistleblowers allege they were singled out for unfair and discriminatory treatment for speaking up or even trying to speak up. Others allege they were told to meet their sales quotas by any means necessary, with a wink and a nod to how they might do so. Finally, employees who failed to meet the unreasonable quotas were sanctioned through wage loss or discipline up to termination.

Yet institutional justice reaches beyond simply the nuts and bolts of corporate life. Recall now former Wells Fargo Chief Executive Officer (CEO) John Stumpf blaming the entire scandal of the 5300 terminated employees as the bad apples, who violated the law, all without the knowledge or consent of their superiors or even senior management. This denial of responsibility by Stumpf flew in the face of 5+ years of whistleblower complaints, concerns raised through employee surveys and other communications, internal investigations, external investigations and even external reporting by the Los Angeles Times.

Both the Fair Process Doctrine, which was so important to my father, and the more recent concept of institutional justice are central to the modern compliance profession. Roy Snell is one of the leading advocates of the compliance profession saying that even if a company can engage in an action, it should not always do so. Sometimes the reputational damage, even if an action is legal, is so great that the risk cannot be managed. The compliance discipline within every company is the one corporate function most well suited to bringing institutional justice into the fabric of a company.

My father and his greatest generation effected a model of workplace justice built upon those who developed the theoretical concepts before them, the current generation of compliance professionals is building upon the tactical concepts of the Fair Process Doctrine to create wider institutional justice. Command and control works in the military. It tends to work in businesses where many of the employees served in the military. For my father’s generation, all this was very familiar. However, both the generations and businesses have evolved over time. Just as my father’s generation gave way to my generation of Baby Boomers who gave way to the Gen Xers, who gave way to the Millennials who have given way to the iGens; Institutional justice draws a straight line from the Fair Process Doctrine.

Thanks Dad.

 

This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.

© Thomas R. Fox, 2016

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