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.

A systems approach starts with the proposition that human are fallible and prone to making errors, yet these errors are largely seen as consequences and not the causes of failure. Of course, any systems approach can only be implemented by a company for its employees so such a technique does require not only sufficient investment by an organization but a commitment to doing business the right way. Finally when a failure does occur, such as an FCPA violation, the issue is not the employee but how and why the compliance program failed. From that analysis, a company can begin to address the systems failures or over-rides which led to the issue.

Which approach does your company favor?

Continue the conversation at Compliance Week Europe: 7-8 November at the Crowne Plaza Brussels. Join us as we look at changes in global anti-corruption regulations, slave labour risks in your supply chain, and how to detect fraud, to name just a few topics. Learn more