This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.

One of the strangest incidents in the history of Major League Baseball (MLB) recently had its 50 anniversary. It involved a brawl between Hall Of Fame pitcher Juan Marichal and catcher John Roseboro. The game was between then (and still) heated rivals the San Francisco Giants and the Los Angeles Dodgers. During the game, Marichal apparently took exception to Roseboro returning the ball to his pitcher by whizzing the ball back behind Marichal’s head. Words were exchanged and the next thing anyone knew, Marichal was beating Roseboro over the head with his baseball bat. Dodgers starting pitcher Sandy Kofax and others helped to break up the fight, and Roseboro walked off the field bloodied but unbowed. Marichal was suspended for two critical weeks of a pennant race.

I thought about this brawl between rivals when pondering the recent spate of articles about Amazon and its culture, beginning with the New York Times (NYT) exposure of white-collar work life at the company. The manner in which the company treats its warehouse and blue-collar workers had been, sadly, well documented earlier. Lucy Kellaway, writing in her On Work column in the Financial Times (FT), in an article entitled “Amazon is at the head of an outbreak of good sense,” said, “For years we’ve known (thanks to an article in the FT) that the retailer is mean to its warehouse workers. Now we know that it’s hard on its office workers, too.”

The NYT treatment spoke of brutally long work weeks, a rating system designed to cull out the those deemed to not be working hard enough, an anonymous reporting system which allows employees to report on those not living up to the Amazon way. Amazon’s culture is certainly a very driven one. Jeff Bezos has long done things his way and has not worried too much about what Wall Street or anyone else thinks. The NYT piece and resulting fallout do have certain aspects that are of interest to the Foreign Corrupt Practices Act (FCPA), UK Bribery Act or similarly situated anti-corruption compliance practitioner.

First, a word about long hours: for anyone who has ever been an associate at a law firm of any size, or an investment banker, reading that someone else works 75 to 80 hours per week does not illicit much more than a stifled yawn. The reality of today’s workplace is that it does not matter what time of day or night it is; if you are white collar, you are on the clock. At one organization where I worked, the joke was management would really, really, really try and give you Saturday off; unless of course they had a question because, of course, they were working, so you might as well be there at their beck and call. Overlay that attitude with a worldwide enterprise and you then have folks calling at all hours of the day or night, as I did when I (somewhat sheepishly) discovered that New Zealand is not in the same time zone as Perth, Australia.

But beyond these long working hours and turning employees into full-fledged Amazonians (good) or Ambots/Amholes (bad), Kellaway finds Amazon’s intense culture a refreshing bit of honesty. It is honest in that Amazon does not really care about its employees’ feelings or how hard they drive them. She wrote, “The lesson from Amazon blows away one of the biggest lies of management. The stakeholder model pretends you can have it all – customers, shareholders and employees can all do well at the same time … At Amazon, the customer wins – and the employee does not.”

Matt Kelly, writing in his The Big Picture column in Compliance Week, in an article entitled “Amazon, Data, and Selling Your Culture Down the River,” has a different take on the Amazon saga. Kelly does not address the long hours, but instead goes after the culling system for getting rid of employees and the anonymous reporting structure. Kelly wrote that Amazon “looks like a miserable place to work. A rank-and-yank system of performance reviews that pits one employee against another. An employee feedback system that generates anonymous personnel tension far more than it roots out legitimate misconduct. A culture so obsessed with data that executives turn a blind eye to context, which breeds ever more fear of failure into an overworked and exhausted workforce.”

Yet Kelly’s main focus is on Amazon’s use of data-driven analytics as the be all and end all. One Amazonian said in response to the NYT article that data is liberating and data provides clarity. Yes it does, but it is only a tool to be used by humans in evaluation. In an anti-corruption compliance program, data can be predictive and useful as a preventative tool. However, it should not be used to “abdicate responsibility for making a difficult choice. Having information at your fingertips can help inform the choices you make, certainly; that’s wise management. A slavish devotion to data, however – which seems to be what Amazon exalts above all – removes the need to choose.”

Moreover, the use, or perhaps misuse, of the Amazon anonymous reporting system also troubles Kelly. He writes, “Amazon also tries to embrace a speak-up culture, with online tools that let employees provide anonymous feedback on peers and meetings where executives are required to debate and find flaws in others’ ideas. The tools themselves are only tools, harmless unless someone uses them maliciously. Rigorous debate at meetings is also harmless – it’s praiseworthy, actually – so long as people on the losing side of the debate aren’t punished for trying. But people on the losing side are punished when a data-obsessed culture boils away all factors and only sees the failure. Anonymous reporting tools are used as weapons when data determines your fate.”

In her penultimate line Kellaway said, “The company may not have chosen the most morally acceptable trade-off.” Kelly takes this thought a step further by noting “It’s a rich irony: Amazon’s tools to deliver a better culture become the vehicles employees use to create a worse culture.” Does a company have an ethical duty to make morally unacceptable trade-offs for its employees? In Houston the answer would be just be thankful you have a job, while the somewhat more palatable Bezos intoned, you don’t have to work at Amazon.

Whichever answer it is, the issue for the compliance practitioner will be one of credibility and trust going forward. Will miserable workers cut corners to meet their performance metrics? What about reporting incidents? Perhaps perversely, if your reporting system is used against rivals in a corporation, there might be more reporting of real incidents, but I somehow doubt it. But I do know that if there is not trust in an organization, there will be no significant negative information brought forward because employees will fear that information will be used against them in retaliatory manner.

Eventually Juan Marichal had enough and took a bat to John Roseboro’s head. Let’s hope it does not come to that in the data-obsessed workplace.

 

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 advice, 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.

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Thomas Fox

Thomas Fox has practiced law in Houston for 25 years. He is now assisting companies with FCPA compliance, risk management and international transactions.

He was most recently the General Counsel at Drilling Controls, Inc., a worldwide oilfield manufacturing and service company. He was previously Division Counsel with Halliburton Energy Services, Inc. where he supported Halliburton’s software division and its downhole division, which included the logging, directional drilling and drill bit business units.

Tom attended undergraduate school at the University of Texas, graduate school at Michigan State University and law school at the University of Michigan.

Tom writes and speaks nationally and internationally on a wide variety of topics, ranging from FCPA compliance, indemnities and other forms of risk management for a worldwide energy practice, tax issues faced by multi-national US companies, insurance coverage issues and protection of trade secrets.

Thomas Fox can be contacted via email at tfox@tfoxlaw.com or through his website www.tfoxlaw.com.

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