I am joined by Eric Morehead as we begin a five-part series on the Code of Conduct, which serves as the foundational document of a compliance program. Morehead is well-known within the compliance community, having worked at Corpedia Corporation and NYSE Goverance Services before founding his own company, Morehead Compliance Consulting. He is one of the top compliance practitioners in several areas, including drafting, implementing and updating a Code of Conduct. By the end of this series, you will have the information needed to enable you to consider the current state of your Code of Conduct and then update, if appropriate.
The cornerstone of any compliance program, whether under the Foreign Corrupt Practice Act (FCPA), UK Bribery Act or other similar law’s, is its written protocols, including a Code of Conduct. These requirements have long been memorialized in the US Federal Sentencing Guidelines (FSG), which contain seven basic compliance elements that can be tailored to fit the needs and financial realities of any given organization. From these seven compliance elements, the Department of Justice (DOJ) has crafted its minimum best practices compliance program, which are now attached to every Deferred Prosecution Agreement (DPA) and Non-Prosecution Agreement (NPA). These requirements were incorporated into the 2012 FCPA Guidance. The FSG assumes that every effective compliance and ethics program begins with a written standard of conduct; i.e. a Code of Conduct. What should be in this “written standard of conduct? The starting point, as per the FSG, reads as follows:
Standards of Conduct, Policies and Procedures (a Code of Conduct)
An organization should have an established set of compliance standards and procedures. These standards should not be a “paper only” document, but a living document that promotes organizational culture that encourages “ethical conduct” and a commitment to compliance with applicable regulations and laws.
In the FCPA Guidance, the DOJ and Securities and Exchange Commission (SEC) state, “A company’s code of conduct is often the foundation upon which an effective compliance program is built. As DOJ has repeatedly noted in its charging documents, the most effective codes are clear, concise, and accessible to all employees and to those conducting business on the company’s behalf.” Indeed, it would be difficult to effectively implement a compliance program if it was not available in the local language so that employees in foreign subsidiaries can access and understand it. When assessing a compliance program, DOJ and SEC will review whether the company chapter has taken steps to make certain that the code of conduct remains current and effective and whether a company has periodically reviewed and updated its code.”
FCPA compliance best practices now require companies to have additional standards and controls, including, for example, detailed due diligence protocols for screening third-party business partners for criminal backgrounds, financial stability and improper associations with government agencies. Ultimately, the purpose of establishing effective standards and controls is to demonstrate that your compliance program is more than just words on a piece of paper.
Code of Conduct
In a Society for Corporate Compliance and Ethics (SCCE) 2017 Complete Compliance and Ethics Manual, article, entitled “Essential Elements of an Effective Ethics and Compliance Program”, authors Debbie Troklus, Greg Warner and Emma Wollschlager Schwartz, state that your company’s Code of Conduct “First and foremost, the standards of conduct demonstrate the organization’s overarching ethical attitude and its “system-wide” emphasis on compliance and ethics with all applicable laws and regulations.” They go on to state, “The code is meant for all employees and all representatives of the organization, not just those most actively involved in known compliance and ethics issues. This includes management, vendors, suppliers, and independent contractors, which are frequently overlooked groups.” From the board of directors to volunteers, the authors believe that “everyone must receive, read, understand, and agree to abide by the standards of the Code of Conduct.”
There are several purposes identified by the authors which should be communicated in your Code of Conduct. The overriding goal is for all employees to follow what is required of them under the Code of Conduct. You can do this by communicating those requirements, to providing a process for proper decision-making and then requiring that all persons subject to the Code of Conduct put these standards into everyday business practice. Such actions are some of your best evidence that your company “upholds and supports proper compliance conduct.”
The substance of your Code of Conduct should be tailored to the company’s culture, and to its industry and corporate identity. It should provide a mechanism by which employees who are trying to do the right thing in the compliance and business ethics arena can do so. The Code of Conduct can be used as a basis for employee review and evaluation. It should certainly be invoked if there is a violation. To that end, suggest that your company’s disciplinary procedures be stated in the Code of Conduct. These would include all forms of disciplines, up to and including dismissal, for serious violations of the Code of Conduct. Further, your company’s Code of Conduct should emphasize it will comply with all applicable laws and regulations, wherever it does business. The Code needs to be written in plain English and translated into other languages as necessary so that all applicable persons can understand it.
As I often say, the three most important things about your FCPA compliance program are ‘Document, Document and Document’. The same is true of communicating your company’s Code of Conduct. You need to do more than simply put it on your website and tell folks it is there, available and that they should read it. You need to document that all employees, or anyone else that your Code of Conduct is applicable to, has received, read, and understands it. The DOJ expects each company to begin its compliance program with a very public and very robust Code of Conduct. If your company does not have one, you need to implement one forthwith. If your company has not reviewed or assessed your Code of Conduct for five years, I would suggest that you do in short order as much has changed in the compliance world.
What is the value of having a Code of Conduct? I have heard many business folks ask that question over the years. In its early days, a Code of Conduct tended to be lawyer-written and lawyer-driven to “wave in a defense situation” by claiming that “see we have one”. But is such a legalistic code effective? Is a Code of Conduct more than simply, your company’s law? What is it that makes a Code of Conduct effective? What should be the goal in the creation of your company’s Code of Conduct?
Interestingly, Codes of Conduct were not specifically mentioned in the DOJ’s 2017 Evaluation of Corporate Compliance Programs (Evaluation) release. Morehead explained that may be because the compliance community has “been preaching the Gospel now for better part of a decade at least on Code of Conduct and I think most organizations now or many organizations now, certainly those that are listed public companies in particular, have had a code of conduct that’s been revised in the last, call it five or six years but now they’re getting to the point where it has been five or six years and they’ve got to think about revising it.”However there were several other areas in the Evaluation which impact the design, drafting and implementation of a Code of Conduct, which I will review this week.
Tomorrow, I will consider the structure and form of a Code of Conduct.
For more information on Eric Morehead, Morehead Compliance Consulting or to contact Eric Morehead, go to Morehead Compliance Consulting.
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© Thomas R. Fox, 2017