This article was republished with permission from Tom Fox’s FCPA Compliance and Ethics Blog.
Welcome to Part I of Social Media Week. I recently did a webinar, hosted by The Network, on the use of social media in your Foreign Corrupt Practices Act (FCPA) compliance program. The response was as great as almost any other webinar in which I have participated. Based upon the overwhelming feedback, this week I will post a series of blogs on the use of social media in your compliance program. In Part I, I begin with a discussion of why you should integrate social media into your compliance program.
I have been studying the business side of social media for some time now as a way to help understand how I might more effectively and more creatively bring the message of doing compliance to my readers and podcast listeners. This led me to think about the message of compliance inside of a corporation and how it is distributed. In a compliance program, a large portion of your consumers/customers are your employees. Social media presents some excellent mechanisms to communicate the message of compliance going forward. Many of the applications that we use in our personal communication are free or available at very low cost. So why not take advantage of them and use those same communication tools in your internal compliance marketing efforts going forward?
On the Social Media Examiner site, which brands itself as “Your Guide to the Social Media Jungle,” is a podcast entitled “Social Sharing: How to Inspire Fans to Share Your Stories,” hosted by Michael Stelzner, Chief Executive Officer (CEO) and Founder of the site. In the podcast, Stelzner interviews Simon Mainwaring, author of “We First: How Brands and Consumers Use Social Media to Build a Better World,” who said that to market successfully, there are three key components: (1) Let your employees know what you stand for, (2) Celebrate their efforts and (3) Give them a tool kit of different ways to participate. I think each of these concepts can play a key role for the compliance practitioner in internally marketing their compliance program.
Let Your Employees Know What You Stand For
In the FCPA Guidance, the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) said that the basis of any anti-corruption compliance program is the code of conduct, as it is “often the foundation upon which an effective compliance program is built. As [the] 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.” That well-known @CodeMavencc, Catherine Choe, has said that she believes “Two of the primary goals of any code are first, to document and clarify minimum expectations of acceptable behavior at a company, and second, to encourage employees to speak up when they have questions or witness misconduct.”
But more than the code of conduct, does your company really communicate that it stands for compliance? Obviously formal anti-corruption training under the FCPA is important, but I think that more is required to reinforce that your company has a culture of compliance throughout the organization. In other words, are you communicating what you stand for and not simply the rules and regulations of a compliance program?
Celebrate Their Efforts
Once again, the FCPA Guidance speaks to the need to incentivize employees in the company. The Guidance states, the “DOJ and SEC recognize that positive incentives can also drive compliant behavior. These incentives can take many guiding principles of enforcement forms, such as personnel evaluations and promotions, rewards for improving and developing a company’s compliance program and rewards for ethics and compliance leadership. Some organizations, for example, have made adherence to compliance a significant metric for management’s bonuses so that compliance becomes an integral part of management’s everyday concern.” But more than simply incentives, it is important to “make integrity, ethics and compliance part of the promotion, compensation and evaluation processes as well.”
Mainwaring’s concept means going beyond incentivizing. To me his word “celebrate” means a more public display of success. Financial rewards may be given in private, such as a portion of an employee’s discretionary bonus credited to doing business ethically and in compliance with the FCPA. While it is certainly true those employees who are promoted for doing business ethically and in compliance are very visible and are public displays of an effective compliance program, I think that a company can take this concept even further through a celebration to help create, foster and acknowledge the culture of compliance for its day-to-day operations. Bobby Butler, at Universal Weather and Aviation, Inc., has spoken about how his company celebrated compliance through the event of Compliance Week. He said that he and his team attended this event and used it as a springboard to internally publicize their compliance program. Their efforts included three separate prongs: they were hosting internal events to highlight the company’s compliance program, providing employees with a brochure highlighting the company’s compliance philosophy and circulating a booklet that provided information on the company’s compliance hotline and compliance department personnel.
Give Your Employees a Tool Kit For Compliance
Obviously a key component of any effective compliance program is an internal reporting mechanism. The FCPA Guidance states, “an effective compliance program should include a mechanism for an organization’s employees and others to report suspected or actual misconduct or violations of the company’s policies on a confidential basis and without fear of retaliation.” The Guidance goes on to also discuss the use of an ombudsman to address employee concerns about compliance and ethics. I do not think that many companies have fully explored the use of an ombudsman, but it is certainly one way to help employees with their compliance concerns. Interestingly, in an interview in the Wall Street Journal with Sean McKessy, Chief of the SEC’s Office of the Whistleblower, McKessy stated, “what I hear is that companies are generally investing more in internal compliance as a result of our whistleblower program so that if they have an employee who sees something, they’ll feel incentivized to report it internally and not necessarily come to us.”
Two of the newest and perhaps coolest tools a Chief Compliance Officer (CCO) or compliance practitioner can utilize in the realm of social media are Meerkat and Periscope. Both tools allow you to tell a compliance story in real time, throughout your organization and beyond. They are both live streaming apps that enable you to create a video and open the portal to anyone who wants to use it. Anybody in your Twitter community can click on that link and watch whatever you’re showing on your phone. The big piece is the mobile aspect. It’s as simple as a basic tweet and hitting the “stream” button.
There are a wide variety of social media tools available that you can incorporate into your compliance program. Apps like Pinterest, Snapchat, Instagram and others may seem like tools that are solely suited to personal use. However, their application is much broader. Over the next week, I will be exploring some of these apps and tools and how they might be used in doing compliance. As with many ideas in the compliance space, a CCO or compliance practitioner is only limited by their imagination. For these apps, they can be most useful when you tell the story of compliance in your company. Hootsuite did a campaign called “Follow the Sun,” using Periscope. They decided to let their employees showcase what they called #HootsuiteLife. They gave access to different people in every company office around the globe. Throughout the day, the campaign would “Follow the Sun,” and people in different offices would log into the Hootsuite account and walk around and show off their culture, interviewing their friends, etc. They talk about the importance of culture and now they are proving it. The number of inbound applications drastically increased after people got that sneak peek into their company.
Yet there are other tools available at no cost that can be downloaded onto a mobile device such as a smartphone or iPad. These include the O’Melveny & Myers LLP Foreign Corrupt Practices Act Handbook, which concentrates solely on the FCPA and is primarily a new vehicle to distribute content it already makes available upon request. This content includes O’Melveny’s FCPA Handbook and In-House Counsel’s Guide to Conducting Internal Investigations. In addition, the app features five resource sections that serve as an interactive, illustrative directory with titles ranging from “O’Melveny Authored Client Alerts” to “DOJ Opinion Releases.”
Another approach is found in the Latham & Watkins LLP’s AB&C Laws app, which takes an international approach to anti-corruption and anti-bribery laws, with the content focused on organizing and easing access to statutes and regulatory guidance according to specific fields of interest, from legislative frameworks to extra-territorial application to enforcement and potential penalties. It also includes official guidance such as steps (where available) that can be taken to reduce the risk of liability for bribery and corruption.
There is much to be learned by the CCO and compliance practitioner from the disciplines of marketing and social media. These concepts are useful to companies in getting their sales pitches out and can be of great help to you, the CCO or compliance practitioner, in collaborating and marketing throughout your company. I hope you will follow this week’s Use of Social Media series as I will endeavor to provide to you not only with a discussion of some new tools that you can incorporate into your compliance program going forward, but also a different way to think about who your customers are and how you are reaching them with your message of doing compliance.
Finally, I am compiling a list of questions that readers would like to be explored or answered on the use of social media in a compliance program. So if you have any questions, email them to me at [email protected], and I will answer them within the next couple of weeks in my next Mailbag Episode on my podcast, The FCPA Compliance and Ethics Report.
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 [email protected]