Many commentators view persons who violate the FCPA as just bad actors, rotten apples, or the eponymous rogue employees. One reason that companies use this type of language is to try and move liability off themselves, claiming the responsibility is on the employee to not only know the law but follow it. But as Casius said the Brutus, in Shakespeare’s Julius Ceasar, “The fault, dear Brutus, is not in our stars, But in ourselves, that we are underlings.” For if a company can decouple a person’s acts from any institutional responsibility it is better not only for the company but also the managers above the recalcitrant employee who looked the other way.
Yet there is another fallout from this singular approach of employee responsibility under the FCPA and it relates to the question of whether violations of the law are based on human failings alone or a systems analysis. If you focus on the employee approach, you first must begin to weed out all bad apples in the hiring process, train and remind extensively and not provide any incentives to engage in bribery and corruption. Unfortunately this approach requires you to begin by hiring only angels who would never engaged in such conduct to begin with in the first place. Unfortunately most angels do not work for businesses subject to the FCPA.
