The symbol of Venice is the Lion of St. Mark. The use of this symbol led to the maxim ‘straight from the lion’s mouth’. This adage came about because the Republic of Venice had its own hotline system where citizens could report misconduct. A citizen could write down his concern on paper and literally put the message into the mouth of statues of lion heads placed around the City. This system was originally set up to be anonymous but later changed to require that a citizen had to write his name down when submitting a message.
I thought about this early form of hotline and how its use portended the hotline systems used today to help companies identify compliance issues which might arise under an anti-corruption law such as the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. Obviously the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) recognize the importance of an internal company reporting system, such as a hotline. In the FCPA Guidance it 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. Companies may employ, for example, anonymous hotlines or ombudsmen.” I have often heard Chief Compliance Officers (CCOs) speak about how they are able to not only hear about but address employee’s concerns through confidential reporting where it is clear there will be no tolerance for retaliation.
So, once again, using Venice as inspiration for a compliance topic, today I would like to review some best practices regarding a compliance hotline.
- The hotline should be developed and maintained externally. It seems axiomatic that employees tend to trust hotlines maintained by third parties more than they do internally maintained systems. Through the submitting of reports via an external hotline there is a perceived extra layer of anonymity and impartiality compared to a system developed in-house. A third party provider is also more likely to bring specialist expertise that’s difficult to match within the organization.
- The hotline supports the collection of detailed information. As with most everything else, information is power. If a CCO can gather and record information throughout a complaint life cycle, the company will have greater insight into the situation and a company can protect itself more effectively from accusations of negligence or wrongdoing. A hotline reporting system should provide consolidated, real-time access to data across all departments and locations, plus analytic capabilities that allow you to uncover trends and hot spots. All reported materials should be consolidated in one comprehensive, chronologically organized file, so a CCO can monitor ongoing progress and make better, more informed decisions.
- The hotline must meet your company’s data retention policies. Retaining data in a manner consistent with your internal data retention policies is important. A hotline should offer a secure, accessible report retention database, or you may be faced with making your own complicated and costly arrangements for transmitting and storing older reports to a permanent storage location.
- The hotline should be designed to inspire employee confidence. Retaliation or perceived unfairness to those making hotline complaints will destroy the effectiveness of the internal reporting process and poison the corporate culture. A hotline must be seen to offer the highest levels of protection and anonymity. To encourage employee participation, the hotline should allow them to bring their concerns directly to someone outside their immediate chain of command or workplace environment – especially when the complaint concerns an immediate superior. The hotline should also enable employees to submit a report from the privacy of an off-site computer or telephone. It may seem like a small convenience, but giving employees the freedom to enter a complaint from a location that is safe can make a huge difference to participation rates.
- The hotline offers on-demand support from subject matter experts. Opening lines of communication can bring new issues to your compliance group. It is therefore important that once those reports are entered into the system, a person or function has the responsibility to follow up in a timely manner. One of the biggest mistakes you can make is to sit on a hotline complaint and let the employee reporting it fester. Additionally, with the short time frames set out in the Dodd-Frank Whistleblower timelines for resolution before an employee can go the SEC to seek a bounty, the clock is literally clicking.
- The hotline provides inbuilt litigation support and avoidance tools. A company must make certain that its hotline is preconfigured to meet the legal requirements for document retention, attorney work product protection procedures, and attorney privilege. Developing these tools in-house can add significantly to your costs, and maintaining a hotline without one exposes your organization to unacceptable risk.
- The hotline supports direct communication. A hotline should open the lines of communication and give you a direct sight-line into the heart of your company. Look for a system that enables you to connect directly, privately, and anonymously with the person filing a complaint. Direct communication also signals to employees that their complaints are being heard at the highest levels.
Like other risk management issues, hotlines must also be managed effectively after implementation and roll-out. Here are some practical tips which will help you make your hotline an effective and useful tool.
Get the word out. If employees do not know about the hotline, they will not use it. Allocate a portion of your time and budget to promoting the corporate hotline through multiple channels. Put up posters and distribute cards that employees can keep in their wallets or desk drawers. Deliver in-person presentations where possible. And do not think of the promotional initiative as a one-time effort. It is important to remind employees regularly, through in-person communications, via e-mail, or through intranets, newsletters, and so on, that this resource is available to them. Some hotlines offer promotional materials to help make the job easier; make sure you ask what type of promotional support may be available.
Train all your employees. Getting employees to use the system is one half of the challenge; ensuring they use it properly is the other half. This is where training becomes essential. Make sure people understand what types of activities or observations are appropriate for reporting and which are not. HR and compliance staff will need training too, to help them understand how the hotline impacts their day-to-day activities. Company leaders also need to understand the role the hotline plays in the organizational culture, and the importance of their visible support for this compliance initiative.
Take a look at the data. Use the data derived from or through the hotline to identify unexpected trends or issues. Examples might be what percentage of employees use the hotline and what issues are they submitting? A healthy hotline reporting system will yield reports from .5 to 2 percent of your employee base. If your reporting patterns are higher or lower, it may indicate mistrust of the hotline, misuse, or a widespread compliance issue. Isolate the data by location and department to identify micro-trends that could indicate problems within a subset of your corporate culture. Analyzing the data can help you stay a step ahead of emerging issues.
Response is critical to fairness in the system. Seeing a hotline system in action in this way can go a long way toward dispelling employee fears of being ostracized or experiencing retaliation because if they see that their concerns are heard clearly and addressed fairly, they will learn to view the hotline as a valuable conduit. If your compliance group responds promptly and appropriately to hotline complaints, you can ensure robust participation and ongoing success. Even when a complaint proves to be unfounded, it can still provide an opportunity to open a dialogue with employees and clear up any misunderstandings. Responding to reported issues also gives compliance officers a chance to prove that issues can be resolved or addressed while protecting the privacy and anonymity of the whistleblower.
As my stay in Venice draws to an end, I am reminded how much the western world has to thank the Republic of Venice for. From the forms of republican democracy that the US Founding Fathers drew from to helping to establish a world-wide trade and banking system which still reverberates today. But, if you look closer, ancient Venice had many good government techniques which also still inform the modern world. Straight from the lion’s mouth to your company’s compliance hotline is just one of them.
A most Happy Thanksgiving to all.
Filed under: Best Practices,Bribery Act,compliance programs,Department of Justice,FCPA,FCPA Guidance,Hotline,SEC — tfoxlaw @ 12:01 am
Tags: best practices, Bribery Act, compliance, compliance programs, Department of Justice, DOJ, FCPA, hotlines, internal reporting, SEC
© Thomas R. Fox, 2013