Today’s guest blog post is written by Ms. Thuy Tran. Ms. Tran, a Texas lawyer, has worked as a legal consultant in a variety of industries for companies around the globe. In her own words, she says that she “came to know the FCPA the hard way. I lost weekends and holidays as a member of a legal department of a company undergoing FCPA investigations.” Now, she is doing her best to prevent people from losing their weekends and holidays to the FCPA.
The biggest barrier to a small or medium-sized enterprise (“SME”) compliance program is the lack of political will. Many SME compliance practitioners came to their responsibilities after one or two executives became concerned about reports of investigations or settlements under the FCPA. They have the support of one or two members of upper management, but the rest believe that the SME is too small to be noticed by authorities, or that they are private and are therefore immune to these laws. The purpose of a compliance program, of course, is not to avoid scrutiny. It’s just common sense to know and abide by the law. Period. However, common sense is not so common, and getting buy-in from the top tier of management is no easy task. Every Best Practice list will say that tone from the top is essential. Before SME’s can get to Best Practices, they must first talk some common sense to the executives and the employees and get consensus that compliance is necessary. Many advisory firms, consultancies, and other service providers overlook this essential first step. SME compliance practitioners need help with how to shape the compliance message so that everyone is on board. Only then can they tackle Best Practices.
SME compliance practitioners are often frustrated with the cavalier attitude of employees with respect to ethics and integrity. The practitioners then ask their outside advisors to “teach them a lesson” during presentations and training sessions. Inevitably, words such as “bribe”, “corrupt” or “kickbacks” appear in presentations. The initial reaction from audience members is usually, “I don’t bribe. I don’t give/receive kickbacks. I am certainly not corrupt. This presentation does not apply to me or my company.” The challenge is to inform the audience without annoying them. Admittedly, the above words are all essential to understanding anti-corruption. Perhaps, however, instead of using them in a presentation, they can appear in a policy or appendix to the presentation, with non-legal definitions. Whether or not this is effective is unknown. What is known is that a different approach is certainly needed because feedback from the audience is that these presentations are “scare tactics” and they don’t appreciate that.
In addition to strong language that conjures images of crime and imprisonment, the anti-corruption message is often too legal. Presenters should always avoid quoting the FCPA statute. It means nothing to a non-legal audience. It even irritates some lawyers for its lack of clarity on facilitating payments. There’s another word to avoid – “facilitating payments.” It is impossible to ignore this word, but like the criminal words, it may be best to include it only in the policy or as an appendix to a presentation. Perhaps “acceptable payments and unacceptable payments” may be more effective when explaining what is and is not allowed under the company policy and the laws.
These are only a few examples of the communications challenges that an SME faces. Once a solution is found, then the SME practitioner will hopefully have an easier time getting budget approval for more outside advice and some Best Practices can be implemented. Getting all Best Practices implemented is indeed a victory and that SME practitioner who achieves it is truly ahead of the pack.