The communication of your anti-corruption compliance program is something that must be done on a regular basis to ensure its effectiveness. The FCPA Guidance explains, “Compliance policies cannot work unless effectively communicated throughout a company. Accordingly, DOJ and SEC will evaluate whether a company has taken steps to ensure that relevant policies and procedures have been communicated throughout the organization, including through periodic training and certification for all directors, officers, relevant employees, and, where appropriate, agents and business partners.”
One of the key goals of any FCPA compliance program is to train company employees in awareness and understanding of the FCPA; your specific company compliance program; and to create and foster a culture of compliance. Beginning in the fall of 2015 through the announcement of the FCPA enforcement Pilot Program, the Justice Department began to talk about whether you have determined the effectiveness of your training. This continued with the 2017 Evaluation of Corporate Compliance Programs where they asked “How has the company measured the effectiveness of the training?” This point has bedeviled many compliance professionals yet is now a key metric for the government in evaluating compliance training.
Also raised in the Evaluation was the focus of your training programs. The Justice Department inquired into whether your training was “tailored” for the audience. This adds two requirements. The first is that you must assess your employees for risk to determine the type of training you might need to deliver. This means that you should risk rank your employees. Obviously, the sales force would be the highest risk but there may be others which are deserving of high risk training as well. From your risk ranking, you need to then develop training tailored for the risks those employees will face.
The key going forward is that you have thoughtfully created your compliance training program. Not only in the design but who receives it, all coupled with backend determination of effectiveness. Finally all of this must be documented.