Embracing the aspects of an open culture, emphasizing employee participation and conducing effective investigations no longer has to be a dance on thin ice; know what to report, to who and when while building trust along the way.
Maybe you’re the head of investigations at your company and you have a new addition to your compliance team: a corporate compliance council. First on their agenda is setting a new strategy to be more open with employees so they understand there is a thorough process in place during investigations that allows them to become involved either in a support function or (unfortunately) as the subject of one. You tell the new team member that reporting investigations to the employees currently is comprised solely of the number of overall cases in the annual report.
Many companies are using internal communication platforms to share this information; however, they must be careful in how they disseminate this information as it could end up in the wrong hands during a contentious investigation by a disgruntled employee. The next thing you know, you and your company are being criticized and scrutinized in the news and in the public.
Companies should remain cautious about what and how you share — and to who when establishing a transparent and open working culture.
What reporting details should employees know without putting the company at risk with confidential information being leaked to the media or competitors? What are companies reporting to their employees in relation to outcomes of investigations?
Insight 1: Balance the Pros and Cons of the Status Quo
Historically, many companies have taken the approach described above: an annualized total number of cases, often described along the lines of “dismissals and resignations for ethical breaches.” The number is invariably lost in a much wider report (often CSR) and although this approach has the advantage of minimizing risk to the company, it has a clear disadvantage that much compliance-related opportunity is lost.
Insight 2: Best Practice: Hierarchy of Disclosure
Increasingly, best practice companies are operating a ‘hierarchy of disclosure’ of such issues. While the pure number from Insight 1 is still disclosed, there are a lot more that is done and leveraged.
Insight 3: Promote Processes to Get the Right Message Out to the Right Employees
Many companies remind employees from time to time that there are governance processes, such as grievance, whistleblower and disciplinary, which might involve either a support or subject role (as described in the scenario above).
Perhaps it’s time to take a slightly different route to achieve the same end result. In the UK, we have what is known as the Military Covenant, which is essentially a covenant between the country and its armed forces personnel that in recognition of risking their lives for the country, they will be treated in a certain way.
Compliance Covenant: A similar approach taken from the armed forces, enables you to get the message out about the importance of compliance, what is required of employees and what could happen if they fail to meet the requirements.
This approach enables you to lay out things in a comprehensive and constructive way while still allowing the core or tough decisions to be brought home to employees. This can also lay the ground for periodic reminders going forward.
Insight 4: More Granular Reporting
Using the Hierarchy of Disclosures means you report cases on a more granular and/or relevant basis such as:
- Expenses fraud
- Unacceptable hospitality to procurement officers
- Divisional/Country issues
These would be anonymized to varying degrees, but often they would be less anonymized where there is an egregious case, or when you are trying to get a key message across.
Insight 5: Establish Thorough Investigation and Legal Processes
Establish thorough investigation and legal processes, and based on these processes, you can take the decision that given the greater good that would be served you are prepared to take the public domain risk. This does mean that the processes have to be robust – and should recognize what disclosures have to be prepared and timed so as not to jeopardize internal appeals – and potentially external legal process.
For example, I experienced a case where an individual tried to leverage the press and unions to support his appeal in a disciplinary case. Due to the fact we had put the right process in place, we were confident in our plan. The employee’s plan backfired when they were highly criticized in the court of public opinion. Many employees were supportive of compliance and how we handled the case because there was a process and in this case, it was both applied and demonstrably effective.
We did what we said we were going to do – increasing the trust amongst the organization and with the employees that compliance is doing its job.
Keep the DOJ Top-of-Mind
While we are on the topic of internal investigations, it’s worth it to mention the recent impetus by the DOJ on what they define as a “high-quality internal investigation.”
Your internal investigation processes, as part of your compliance program, to get credit from the DOJ as your process deemed effective it should be designed to uncover wrongdoing and expose individuals rooting back to criminal behavior. While the agency leaves it up to a company on how to run their program, there are best practices to adhere to such as targeting, how much each investigation costs you in time and money and how you are communicating and cooperating with the government.
- Develop general investigations procedures before a crisis hits and incorporate it into your compliance program
- Create an in-house investigations playbook designed to uncover wrongdoing
- Build in “What to Report to Employees” and “What to report to the Government” section using the insights provided above
Addressing the elephant in the room
Even if you cannot share certain information with all employees, it’s important for them to know where an investigation stands, especially, when multiple people are subjects to an investigation or interviewed through the course of an investigation. By creating a follow-up strategy that includes follow-up meetings with all people involved will keep the lines of communication open, contribute to the trust factor and take away any suspicion that you may be hiding any information. Get as granular with the information as you can when you are meeting with each individual to encourage communication and open dialogue.
Having a general conversation with employees who are involved in an investigation helps to send the message that concerns are heard, taken seriously, and followed-up on within a timely manner. Employees don’t need to know any disciplinary outcomes or substantiation, rather they want to feel like their voice is being heard and appropriate action is being taken. This follow-up conversation also allows for management to re-emphasize appreciation for employees who bring forth concerns and encourage future reporting to ensure everyone can experience a healthy, happy work environment.
Having internal investigations treated as part of your overall compliance program allows you to act swiftly when a crisis arises, communicate openly with your employees, build trust in the compliance program’s effectiveness and impact, and get full credit from the DOJ for your efforts and cooperation.