Executive coach and former Chief Compliance Officer Amii Barnard-Bahn responds to your anonymous questions on some of the grayer areas compliance officers face, such as culture, hiring, training, and ethics. Click here to submit your own for inclusion in our next edition.
Q: In compliance, we all know that documentation is important to protect our employer. What about protecting our own reputation as compliance practitioners? For example, what advice would you give in situations when executives do not follow your compliance advice or disagree with your assessment (e.g. whether something is a reportable breach)? Should compliance professionals maintain their own documentation/evidence of job performance, especially when they resign? This question came to mind after recent press releases about companies that “scapegoat” compliance officers. How do we as compliance professionals protect our own reputation and maintain the evidence while following company policies (e.g. not removing PHI or copying any company information)? Thank you!
Amii: Thank you for this important question, which anyone in a compliance role should take note of. For this, I turned to colleague Jenny Schwartz, workplace fairness advocate and partner at the employment firm Outten & Golden in San Francisco:
“Document, document, document. To the extent you can document conversations with executives and others about your advice and their refusal to follow it, make sure that you’ve done that in communications and make your own notes as well. While you shouldn’t keep company documents, you can take your own personal notes with you regarding situations that you fear may put you at risk legally or ethically. You can also make personal notes about the communications in which you’ve engaged so you have key information to identify emails or documents in the future. For example, your notes can say: Talked to Sam Jones re hazardous waste issues and my advice that he XYZ. Documented conversation in email to Sam, copying Jane and Mary on 1/1/2019.”
Most states may have laws protecting the rights of employees to obtain copies of their performance documents (in California, employees are entitled to obtain copies of performance-related documents under Labor Code 1198.5).
Q: So, it’s not really my place, but my company has a “garbage” maternity/paternity leave plan, and I feel like, as a compliance officer, I need to advocate for a much better one. I’ve talked to senior management and hit a dead end (company thinking is in the Stone Age), but is there anything else I can do? As a manager, I feel like I should set the right tone of “the way things are done are here is the ‘right’ way,” but at the same time I don’t want to go against company policy. Is there a middle ground?
Amii: I appreciate your passion and applaud your integrity to speak up. You are not alone in recognizing that the topic of paid leave is an important issue. A 2018 survey by the Society for Human Resources Management (SHRM) found that 92 percent of employees find paid leave important to job satisfaction, and 29 percent reported that their overall benefits are a reason to look for a new job over the next year. Some states have enacted paid family leave requirements, and federal proposals are winding their way through Congress (based on a 2019 Bureau of Labor Statistics report, 17 percent of companies offer paid parental leave, and 89 percent offer unpaid).
Studies have also shown a strong correlation between gender pay equity and the use of paternal leave. As illustrated in a recent Forbes article, paternity leave equalizes the division of labor at home and de-stigmatizes taking time off from work for family. And of course, there is the value of family bonding and giving new families time to adjust to the complete shift occurring in their lives before returning to work, which benefits everyone.
The design of a company’s benefit package is almost always the domain of the human resources department in consultation with the executive team—and as you point out, not usually in the compliance realm. Companies usually have an overall philosophy around their compensation and benefits strategy, which may in part depend on company size, competition for talent, and ability to pay.
For example, many small businesses have a difficult time managing leaves of absence because they don’t have backup coverage for someone while they are out. Generally speaking, the larger the company and more profitable, the more generous they are with benefits for employees.
Try to find a sympathetic executive sponsor (preferably someone in human resources) that is open to considering a change. Based on what you shared, you may need to take a long view in advocating for culture change. It’s important to note that especially with leave policies, there is a gap between policies and practices. Even when it’s offered by their company, employees need to believe their manager supports them and that they will not be penalized for taking the leave—or they are unlikely to take it. As reported by the SHRM, “despite the increased availability of paid leave, working women in the U.S. reported taking only 52 percent of available family leave in 2018, and working men reported taking even less: 32 percent.”
So whatever leave policies are in place, it’s important for your organization to promote it to employees, explain how it works, and—perhaps most importantly—coach managers on how to support it. Human resources can host brown bags on the topic to educate employees and also provide a forum on what would be important in terms of offerings.