Today, we celebrate one of the greatest engineering achievements of the century. On this date in 1937, the Golden Gate Bridge opened. At 4200 feet long, it was at the time the world’s longest suspension bridge. But not only was it an engineering and architectural milestone, its aesthetic form was instantly recognized as classical and to this day is one of the most iconic structures in the US if not the world. With just a few years until its 80th birthday, it demonstrates that a lasting structure is more than simply form following function but contains many elements that inform its use and beauty.
I use the Golden Gate Bridge as an entrée to my continued discussion on the series on steps that you can use in your compliance program if you find yourself, your company or your industry in an economic downturn. Whether you are a Chief Compliance Officer (CCO) or compliance practitioner, these steps are designed to be achieved when you face reduced economic resources or lessened personnel resources going forward due to a downturn your economic sector. Yesterday, I discussed mapping your current and existing internal controls to the Ten Hallmarks of an Effective Compliance Program so that you can demonstrate your compliance with the Foreign Corrupt Practices Act’s (FCPA) internal control prong to the accounting procedures. Today I want to discuss the issues surrounding the inevitable layoffs your company will have to endure in a downturn.
In Houston, we have experienced energy companies laying off upwards of 30% of their workforce, both in the US and abroad. Employment separations can be one of the trickiest maneuvers to manage in the spectrum of the employment relationship. Even when an employee is aware layoffs are coming it can still be quite a shock when Human Resources (HR) shows up at their door and says, “Come with me.” However, layoffs, massive or otherwise, can present some unique challenges for the FCPA compliance practitioner. Employees can use layoffs to claim that they were retaliated against for a wide variety of complaints, including those for concerns that impact the compliance practitioner. Yet there are several actions you can take to protect your company as much as possible.
Before you begin your actual layoffs, the compliance practitioner should work with your legal department and HR function to make certain your employment separation documents are in compliance with the recent SEC v. KBR Cease and Desist Order regarding Confidentiality Agreement (CA) language which purports to prevent employees from bringing potential violations to appropriate law or regulatory enforcement officials. If your company requires employees to be presented with some type of CA to receive company approved employment severance package, it must not have language preventing an employee taking such action. But this means more than having appropriate or even approved language in your CA, as you must counsel those who will be talking to the employee being laid off, not to even hint at retaliation if they go to authorities with a good faith belief of illegal conduct. You might even suggest, adding the SEC/KBR language to your script so the person leading the conversation at the layoff can get it right and you have a documented record of what was communicated to the employee being separated.
When it comes to interacting with employees first thing any company needs to do, is to treat employees with as much respect and dignity as is possible in the situation. While every company says they care (usually the same companies which say they are very ethical), the reality is that many simply want terminated employees out the door and off the premises as quickly as possibly. At times this will include an ‘escort’ off the premises and the clear message is that not only do we not trust you but do not let the door hit you on the way out. This attitude can go a long way to starting an employee down the road of filing a claim for retaliation or, in the case of FCPA enforcement, becoming a whistleblower to the Securities and Exchange Commission (SEC), identifying bribery and corruption.
Treating employees with respect means listening to them and not showing them the door as quickly as possible with an escort. From the FCPA compliance perspective this could also mean some type of conversation to ask the soon-to-be parting employee if they are aware of any FCPA violations, violations of your Code of Conduct or any other conduct which might raise ethical or conflict of interest concerns. You might even get them to sign some type of document that attests they are not aware of any such conduct. I recognize that this may not protect your company in all instances but at least it is some evidence that you can use later if the SEC (or Department of Justice (DOJ)) comes calling after that ex-employee has blown the whistle on your organization.
I would suggest that you work with your HR department to have an understanding of any high-risk employees who might be subject to layoffs. While you could consider having HR conduct this portion of the exit interview, it might be better if a compliance practitioner was involved. Obviously a compliance practitioner would be better able to ask detailed questions if some issue arose but it would also emphasize just how important the issue of FCPA compliance, Code of Conduct compliance or simply ethical conduct compliance was and remains to your business.
Finally are issues around hotlines, whistleblower and retaliation claims. The starting point for layoffs should be whatever your company plan is going forward. The retaliation cases turn on whether actions taken by the company were in retaliation for the hotline or whistleblower report. This means you will need to mine your hotline more closely for those employees who are scheduled or in line to be laid off. If there are such persons who have reported a FCPA, Code of Conduct or other ethical violation, you should move to triage and investigate, if appropriate, the allegation sooner rather than later. This may mean you move up research of an allegation to come to a faster resolution ahead of other claims. It may also mean you put some additional short-term resources on your hotline triage and investigations if you know layoffs are coming.
The reason for these actions are to allow you to demonstrate that any laid off employee was not separated because of a hotline or whistleblower allegation but due to your overall layoff scheme. However it could be that you may need this person to provide your compliance department additional information, to be a resource to you going forward, or even a witness that you can reasonably anticipate the government may want to interview. If any of these situations exist, if you do not plan for their eventuality before you layoff the employee, said (now) ex-employee may not be inclined to cooperate with you going forward. Also if you do demonstrate that you are sincerely interested in a meritorious hotline complaint, it may keep this person from becoming a SEC whistleblower.
Just as the Golden Gate Bridge provides more to the human condition than simply a structure to get from San Francisco to Marin County, layoffs in an economic downturn provide many opportunities to companies. If they treat the situation appropriately, it can be one where you manage your FCPA compliance risk going forward.
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