In April, the Department of Justice (DOJ) released an updated version of its guidance document on the “evaluation of corporate compliance programs.” The document was not revolutionary, just longer and more detailed.
It still included the requirements for compliance training set out in the 2017 version – including risk-based, effective training and management support of the training program, etc. – but added an additional set of questions prosecutors may potentially ask when evaluating training programs, including: have employees been tested on what they have learned? And how has the company addressed employees who fail all or a portion of the testing? The point at issue, then, is whether or not your compliance program is effective. The DOJ stresses that point by instructing prosecutors to “examine whether the compliance program is being disseminated to, and understood by, employees in practice.”
When you look up the meaning of “to train,” you’ll come across different definitions: “to teach a person a particular skill or type of behavior through sustained practice and instruction,” “to develop and improve a mental faculty through instruction or practice,” “to make prepared for a test of skill.” Applying these definitions to compliance training can be quite telling. In general terms, once compliance has successfully formulated policies, it needs to follow up with training material, to make sure that employees understand those policies. But, if training is to be truly effective, then a “check-the-box” program just won’t cut it. Training must be tailored and sustained to allow employees to develop a set of skills enabling them to act in the right way and make the right decisions when faced with difficult dilemmas. But how do you make sure that employees are truly engaged and adopt the values and messages conveyed in practice?
Here are a few tips to use along the way:
- Carefully pick your material. here is an array of different shapes and forms your training material can be delivered in. These can range from on-site teaching to e-learning courses, or perhaps virtual or augmented reality games. The most important thing is that your material is easily digestible and fun. Keep in mind that your audience is not made up of lawyers or subject-expert matters, they just need to grasp your message and understand why it is important.
- Tailor your training to the needs of your audience. If your goal is to get and keep the attention of the audience from start to finish, then tailor your content accordingly. Make sure that you understand the group of people you’re addressing to deliver training that is relevant to their particular job. Create the content to answer the particular types of risks they face and how they can mitigate those risks.
- Make training fun and exciting, not boring and repetitive. One way to go about this is to spare employees training on areas they already master. For instance, you could start by testing their knowledge before kicking off the training. Those results can then guide the length and depth of the training course they are about to be instructed in.
- Provide examples and real-life scenarios. Make your training relatable. You need, in every sense, to put yourself in the shoes of the employee. Get a realistic understanding of how and what a day in the job looks like for them, and create eye-opening scenarios. That will not only capture their attention but will also make them feel that compliance really understands the challenges that they may face on the ground. Furthermore, it will make them appreciate the mitigation tools you deliver in your training and adopt them.
- Management buy-in. If not the most critical factor, management buy-in is one of the most important foundations for installing a genuine compliance culture within an organization. A first-class training program won’t do much to achieve the overall goal of installing the right values and behaviors amongst employees if these are not also trickling down from the top. Make sure that management is on board with your goals and see the value of your training program.
- Communicate the importance of blowing the whistle on unacceptable behavior. If training is key to preventing wrongdoing then, it should also be key in detecting it. If employees are not educated on how to report a breach of company codes and policies, then wrongdoing will go unpunished and, worst case, some might assume that it’s accepted. So eventually one misstep will spiral into many because the environment is a breeding ground for it. In fact, the recently released Nordic Business Ethics Survey 2019 reveals that a speak-up culture is not common among Nordic companies and that more than 40% of respondents did, in fact, not know how to act when witnessing something illegal or unethical, indicating that training is key in identifying and cracking down on misconduct.
These are just a few ways you can build your compliance training program to create a genuine compliance culture, where employees, management, third parties or any other person contributing to a business are guided by the right values and ethics when carrying out business. Goals that are no longer just wishful thinking, but requirements that need to be approached in a structured and operationalized way and a point that the DOJ also specifies with its guiding questions are, “How often and how does the company measure its culture of compliance?” and “What steps has the company taken in response to its measurement of the compliance culture?”
Admittedly, no matter how effective a compliance training program is, it will never guarantee that no employee will ever be involved in misconduct, and that’s also acknowledged by regulatory agencies. But, the matter of the fact is that a compliance training program should be designed to effectively prevent and detect wrongdoing. For that, training should be inclusive, engaging and ongoing. It should not only be restricted to courses and classes, nor a collection of “don’t do this or that.” It should be translated from instructions to performance and resonate with everyone in the organization. It should have employees behave ethically not because they have to, but because they want to.
ABA Law Technology Today was launched in 2012 to provide the legal community with practical guidance for the present and sensible strategies for the future. LTT brings together practicing lawyers, technology professionals and practice management experts from a wide range of practice settings and backgrounds. LTT is published by the ABA Legal Technology Resource Center.