Ethical Culture Standards No Longer Optional Under New DOJ Guidelines

The new DOJ guidelines for effective compliance programs emphasize impact as the key criteria for determining effectiveness. They begin with three questions: Is the compliance program well designed? Is it being applied earnestly and in good faith? Does it work in practice? The guides instruct prosecutors to examine whether a program is disseminated to and understood by employees in order to decide whether it is truly effective, and when evaluating training, to decide if information about the program is relayed in a way that is tailored to the audience’s size, sophistication and subject matter expertise. The guides also indicate that prosecutors must investigate whether a company engages in meaningful efforts to review its compliance program and ensure that it is not stale. Evaluating ethical culture as part of program improvement is no longer optional. Prosecutors are instructed to ask: How often and how does the company measure its culture of compliance? Does the company seek input from all levels of employees to determine whether they perceive senior and middle management’s commitment to compliance? What steps has the company taken in response to its measurement of the compliance culture?