Compliance Perspectives

By Adam Turteltaub

It’s a complex world, we all know, and we all try to simplify it and our lives, at least from time to time. Nitish Upadhyaya, Director-Behavioral Insights at Ropes & Gray’s R&G Insights Lab and podcaster, wants compliance teams to appreciate complexity and, if not embrace it, at least understand how to work with it.

For him this journey started many years ago with the recognition that disincentives don’t always work. He wanted to understand why. This led him to an understanding of complexity, which explores the connections between people and systems and how nonlinear and unpredictable things can be.

Appreciating that knot of connections is important for compliance teams, he argues, since the nature of the job involves affecting individual behavior and culture.

He outlines several principles that compliance teams should follow:

Move away from the idea that you can map everything.

Context matters. Understand the human dynamics and stories.

The only real rule in a complex system is it will have unintended consequences.

When dealing with a complex system, think of the direction you want, not just the end point.

It's about managing energy in the system and following natural contours

Anomalies are helpful. Outliers can be your next risk or innovation.

Map constraints, the things that connect or limit people, such as fear of retaliation or cultural issues,

And when it comes to a root cause analysis, dig until you find not just the root, but the several roots that likely underlie it.

Listen in to learn more about approaching and harnessing complexity.

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By Adam Turteltaub

The Health Care Compliance Association just published the 4th edition of the Research Compliance Professional’s Handbook, and to see what’s new in it we sat down with the editor, Kelly Willenberg (LinkedIn) of Kelly Willenberg & Associates.

The Handbook, she explains is there to help both those who attend the HCCA Healthcare Research Compliance Academy and anyone looking for a desktop reference that addresses the fundamentals of research compliance. It addresses topics such as safety, privacy, monitoring, and biosecurity.

For this edition each chapter was reviewed thoroughly with any and all necessary updates made, including to the chapter on FDA regulations.

In addition, a new chapter was written to address AI. It defines what AI is and why compliance teams need to look at it from a risk management perspective. The chapter also addresses the integration of AI and how therapies are changing.

One admonition that she provides for compliance teams is to watch Europe. As with privacy, Europe has taken the lead in AI regulation.

Be sure to listen in and then take a look into buying your own copy of Research Compliance Professional’s Handbook, 4th Edition.

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By Adam Turteltaub

It’s one thing if a company wants to protect its trade secrets. But, what if it wants to keep its dirty little secrets from getting out? Then, the SEC may want to step in.

Stephen Cohen (LinkedIn), partner at Sidley Austin, and a former senior leader in the Enforcement Division at the SEC, explain in this podcast that, to understand the issue, we need to look back to the Dodd-Frank Act.

The law led to the SEC whistleblower program and included anti-retaliation authority. The SEC believed it had implicit authority to punish efforts that impeded direct communication by whistleblowers with the Commission and its staff. Both the SEC and CFTC have created similar rules prohibiting organization and individuals from taking any action that inhibits someone communicating directly with the SEC about a possible securities law violation.

The SEC has interpreted that to mean that language in non-disclosure and severance agreements, codes of conduct, policies and elsewhere that either require employees to report issues internally rather than to the government, or require non-disclosure to the government as a condition of severance, are illegal.

Several companies have since run afoul of the SEC on this issue, with cases going back to 2015.

So what should companies do? For one, make sure that they are properly balancing the need to protect confidentiality without interfering with whistleblowing. Watch for language prohibiting disclosure of information to third parties that doesn’t provide an exception for the government. Be on the lookout, too, for policies requiring departing employees to attest that they did not disclose information to the government. Look, too, at what your employment agreements say. Likewise, watch what language you include in agreements with your third parties. The SEC looks askance, there, too, to language that it perceives would inhibit reporting of wrongdoing.

Listen in to learn more about this evolving issue and its many pitfalls.

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By Adam Turteltaub

Greg Walters is an attorney in the Cyber Risk and Governance Branch at the SEC. But in this podcast he’s not speaking as an enforcer but as someone who has seen a lot of compliance training during his career as a government attorney across numerous agencies.

He warns that while an organization may boast of 100% completion rates for their training, that doesn’t mean 100% of the employees got the message. That’s especially true of online training, where, unlike live training, it’s hard to tell if people are truly following along and then adjust the learning.

The goal, he argues, is not to just give knowledge but to affect behavior. So, to see what impact the training has had, look to changes in the number of types and questions you receive, as well as incidents that do or don’t occur.

Also, take the time to understand your audience and make sure that the training is relevant to them and reflects the culture of the organization.

Listen in to learn more tips for improving the effectiveness of your compliance training program.

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By Adam Turteltaub

There is an expectation in many, if not most people, that at some point they will, or should be, promoted. But how do you know if you are ready? And, once you are promoted, what does it take to succeed in your new role?

To find the answers we spoke with compliance veteran, Debbie Hennelly, Founder & President of Resiliti.

The first piece of advice she shares is that not everyone needs or wants to be a manager. For many it’s okay to say that they love being a subject matter expert and advisor, and they aren’t ready, or maybe never will be ready, to be something else.

If you are looking to move up, how do you know you are ready? She reports that you don’t until you are actually in the job. That’s especially true for compliance people, since we who often don’t benefit from the leadership and management training that is given to other parts of the organization.

Once in the role, let the team know that you value them. If there was someone else on it that you beat out for the role, acknowledge the situation and let the person know you recognize the sensitivities and hope to earn their trust.

If you are new to the organization, know that it’s okay and better to spend the first 90 days doing a lot more listening than talking. Resist the urge to make changes until you have a better understanding of the organization’s culture. Also, take the time to introduce yourself to peers and leaders. Ask them about their roles and how you can support them.

Listen in to learn more about how to step up successfully.

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By Adam Turteltaub

What if you had a compliance program and nobody noticed? It’s not likely. But what if you had a compliance program, and nobody understood what it did? That, sadly, is more than a bit of an ongoing problem.

To take on that challenge we spoke with Carolina Santos de Silva, Head of Ethics & Compliance EMEA for Bridgestone EMEA and Pauline Blondet, Co-Owner and Chief Operating Officer of Upright Solutions. The two recently published the article “How to Sell Ethics and Compliance to your Organization” in the October issue of Ethikos.

They persuasively argue in this podcast for compliance teams to think about their product, brand and having a robust message.

Start with your product. Is it ethics, ethics and compliance, integrity? Think through which best defines what you are offering.

Your brand is the image the compliance team communicates within the organization and what differentiates you from other departments. It needs to reflect the department’s message.

From the brand will come a pitch, or your department’s elevator speech. It should introduce yourself, present your why or purpose, explain what it is that the organization is facing as a challenge and introduce the solution you are providing, and include a call to action.

Some other pieces of advice they offer are:

Define who your target audiences are, including an assessment of where they are when it comes to compliance, what you expect from them and what the gaps are.

To gain leadership support, help them understand the broader compliance context in which the organization operates.

Don’t assume leadership understands its role within a compliance program. Show them and then thank them when they help.

Seek out as many touchpoints with the workforce as possible.

Remember that who sends the message can be just as important as the message itself.

Listen in to learn more about strategic and innovative ways to sell your compliance program internally.

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By Adam Turteltaub

With the explosion of sanctions regimes globally, and particularly in the US, most any company that exports just about anything now has to have a trade compliance effort. To understand what that entails we spoke with Julia Komarovskaya, Export Compliance Manager at MathWorks.

It’s a complex challenge, she explains, with the Bureau of Industry and Security (BIS), International Traffic in Arms Regulations (ITAR), and Office of Foreign Assets Control (OFAC) all having a say, and often with overlapping jurisdictions. Organizations need to watch what goods they export, to where and to whom. Knowing your customer has never been more important.

To navigate this minefield, she recommends first recognizing that the rules don’t apply only to goods. Services can be covered as well. Also recognize that exporting something as innocuous as a pencil could be prohibited, if sent to the wrong person.

Developing an export control program right takes understanding what you are exporting now, working closely with the business team as early in the process as possible, and planning for the long term since regulations are guaranteed to grow more complicated over time.

Listen in to learn more about the basics of the complex world of trade compliance.

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By Adam Turteltaub

Reports are that there over 50 million people in the world living in modern slavery conditions, and, of those, 60% work in forced labor in the private economy. Ensuring that your organization isn’t sourcing from suppliers who victimize labor is both a moral and a legal obligation, with more and more jurisdictions enacting legislation in this area.

Vera Belazelkoska, Managing Director at Ulula urges organizations to look to balancing this risk with a mixture of boots on the ground and technology. Both, she notes, have their virtues and limitations. While having someone visit a factory provides an eyewitness account, it’s expensive, and unscrupulous manufacturers may hide the truth from investigators. Technology solutions are less expensive, but they are not necessarily as precise as they could be, often providing country data, but not the granularity needed.

Only with a prudent mixture of the two can an organization gain a better understanding of its supply chain and the presence, or absence, of modern slavery in it.

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By Adam Turteltaub

There are hundreds of Compliance Perspectives podcasts, and this is the first one that is a podcast about podcasts. More specifically, the podcasts created by the compliance team at John Deere.

The compliance team there had long looked to a wide range of tools for reaching the workforce including a monthly email newsletter, channel on internal social media, an intranet site and even digital signs on TV screens at their facilities. Yet, despite all this effort, they knew they could do more.

As Wendy Davies-Popelka, the Associate Director, Global Ethics & Compliance, explains, the compliance team was listening to and hooked on several podcasts, and it occurred to them that they should try and create one of their own. So, they did.

The podcasts are generally 5-10 minutes long and are based on actual cases that occurred at the company. Investigators, business people and others are interviewed to tell the story, from initial allegation through dispensation.

The series has been very successful with a growing audience. Importantly, it has demystified the compliance program.

To learn more about the podcasts and how easy they can be to create, be sure to listen to this podcast about John Deere’s podcasts.

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By Adam Turteltaub

Psychological safety is a term we hear a lot in business and elsewhere.  It’s also a concept that Jen Mason, Vice President, Enterprise Compliance & Ethics at McKesson, thinks we in compliance should embrace. It means creating an environment where employees can feel comfortable expressing their thoughts, ideas and concerns without facing negative consequences.

It’s not about being nice. It’s about listening, following through on what you say you will do, being respectful of the workloads of others and showing empathy. It’s also about not punishing mistakes, pushing people until they burnout and talking more than you listen. It’s also about having policies that are flexible but consistent.

Listen in to learn more about how to create psychological safety, including at those difficult times when there may be a conflict.

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