This blog post was updated on April 26, 2023 to reflect new guidance from the DOJ.
Ethics and compliance programs exist primarily because companies, if accused of misconduct, get credit (no prosecution, lighter fines, penalties) from the US Department of Justice if they have strong E&C programs. The Department of Justice (DOJ) puts out guidance from time to time about what makes an E&C program effective. A comprehensive training program is an essential part of a strong E&C program.
What is DOJ guidance and how does it inform effective compliance programs?
From time to time, the DOJ puts out non-binding (an important point) guidance as to what “good” looks like for ethics and compliance programs. For example, E&C training programs should be tailored to the risks facing the company and employee job function as much as possible. LRN has a collection of resources on DOJ compliance guidance that covers how our solutions map to the Department of Justice’s criteria.
Are there examples of how effective compliance programs meet DOJ guidance?
Yes. At the Compliance Week conference in May 2022, Ken Polite, the Assistant Attorney General for the Criminal Division within the Department of Justice, made that clear:
- He warned that companies that fail to invest adequate resources in compliance will pay large fines in the event that they are subject to a DOJ enforcement action.
- He noted that companies which “make a serious investment in improving their compliance programs and internal controls will be viewed in a better light by the Department of Justice and by my Criminal Division.”
- His central message to company leadership could not have been clearer: support your compliance programs now—or pay later.
In September 2022, the DOJ further revised its corporate criminal enforcement policies, making significant changes regarding personal accountability for misconduct, appointment of monitors, voluntary disclosures, repeated misconduct, and—most importantly for ethics and compliance (E&C) teams—how companies reward or penalize individual ethical conduct. According to Deputy Attorney General Monaco, the DOJ’s number one priority in criminal enforcement is individual accountability.
Which E&C programs meet DOJ guidance for strength and effectiveness?
The US Department of Justice has a full set of guidance available on their website about the evaluation of corporate compliance programs. But to highlight the DOJ’s input over the past 10 years, effective compliance programs that shield companies from fines and penalties are ones that:
- Are adequately resourced with authority, stature, staffing, access and budget to carry out their functions.
- Are tailored to meet the company’s unique compliance risks and updated regularly as those risks change or evolve.
- Participate in and influence business decisions that involve compliance risk, going beyond “checklists” of activities.
- Impact employee behavior.
On March 3, 2023, the DOJ unveiled several updates to their ongoing guidance on the evaluation of corporate compliance programs as well as a new policy on incentivizing companies to adopt compensation and bonus plans tied to compliance and ethical behavior. The new three-year initiative, the pilot program regarding compensation incentives and clawbacks, is the outgrowth of their September 2022 policy making personal responsibility for misconduct the department’s number one priority.
What else should I know about meeting DOJ compliance guidance?
To learn more, browse LRN’s resources on keeping pace with the DOJ and check out our practical tools for building an effective E&C program.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Readers should consult with their own attorney regarding legal matters.
