Jay Rosen continues a series on corporate monitorships, discussing the positive impact an independent monitor can have in the context of an investigation – not only on the organization, but also on the employees.
What impact can engaging a monitor have on your organization?
Many of the benefits a company experiences in working with a monitor come from answering the employees’ fears and concerns.
Many employees are intimidated by attorneys and some even feel guilty about themselves and their work, even though they have done nothing wrong. Often, employees do not feel like they can trust the company, particularly if the company does not employ the Fair Process Doctrine or institutional justice as a core value of the organization.
Employees Feel Validated
Other employees feel validated, and opening up to outsiders can be a cathartic experience. For the larger organization, the monitor can tell the company what it does not know and provide a much-needed “big picture” impact, delivering insight on how the company can be run more efficiently and profitably. The bottom line is that the benefits of using an independent monitor can be behavioral and psychological, as well as compliance-related and legal.
The impact of working with a monitor is present at several different levels. The first is very personal, at the employee level. I’ve seen this time and time again when we sit with an individual employee at various levels – it could be at a lower level or at the CEO level. The employee will feel validated and, in some ways, innocent. It sounds odd to say that, because you would think that if the company was working properly, each employee would have an opportunity to say their piece and describe observations and their experiences. Unfortunately, that is not the way the real world works when people have concerns and fears of retaliation.
Focus Groups
AMI has found that, after conducting an interview or a focus group, employees will sometimes say, “I have been wanting to say these things to somebody, but I hope this is not attributed to me. I’m not looking for you to go back to anybody and say that I said this, but I hope you will take what I have said and what others have said and make some suggestions to the company.”
The key impact from working with a monitor is that when a monitor listens, employees feel better explaining their perspective on what’s happening internally in the company.
A Truly Independent Monitor
Using a truly independent monitor – meaning a monitor who is not also the lawyer for the firm or with the company’s regular outside counsel – provides another important insight into how this works in an organization. Most employees more fully appreciate talking to outsiders who they do not interact with on a day-to-day basis, even if the monitorship is required under an enforcement action and in the in the context of a government settlement.
If the monitor makes it clear they are independent from the government, employees are more likely not only to open up, but also to appreciate the experience.
These concepts tie directly into the Fair Process Doctrine, which most generally holds that if the process is fair, people are more likely to accept undesired outcomes. An independent monitor who does not perform ongoing work with the company will certainly be perceived as being fairer. It’s just human nature.
Helping Turn the Page
This independent nature also gives the monitor the ability to impact the company by helping it turn the page on any conduct they may have gotten into trouble for in the first place. This is particularly true where a company has gone through an enforcement action and resolved the matter with the government and is now ready to move on in a positive way. Employees typically want to feel good about the organization they work for; people aspire to work for a company they can feel good about. They want to tell their spouse, to tell their children. They want to feel good when neighbors ask them who they work for.
If their company got into trouble, employees like the fact that pages are being turned and once again, they can be very proud.
Government Independence
This independence from the government also works to positively impact the work of a monitor. Although an independent monitor has an obligation to report to the government faithfully as to what we are seeing – the good, the bad and the ugly – an independent monitor is not beholden to the government. At the end of the day, companies respect us and recognize that it’s in their best interest for us to be independent. If we’re in the company’s pocket and we do whatever the company wants, the government will see right through that, and it’s not going to be a good outcome.
The positive impacts of working with a monitor can happen on many levels. Obviously, for a company that has recently concluded an enforcement action, a monitor can yield many benefits to improve the compliance program, yet some of the greatest benefits may be more behavioral and psychological for the company’s employees.
Talking to a truly independent outsider can be cathartic for employees, and the entire process can help to re-instill a sense of pride in who they are, who they work for and what the organization means.
In case you missed the earlier installments of this ongoing series, please see the links below.
Everything You Always Wanted to Know About Monitors But Were Afraid to Ask
Part 1: Corporate Monitorship 101: Who Are They, and What Can You Expect?
Part 2: What is a Post-Resolution Monitorship?
Part 3: What is the Power of a Pre-Settlement Monitorship?
Part 4: What Issues Should a Company Consider When Hiring a Corporate Monitor?
Part 5: How Much Will a Corporate Monitorship Cost?
Potential Issues in Corporate Monitorships
Part 1: What are the Fears and Concerns of Working with a Monitor?
