What keeps GCs up at night

Ethical mishaps top an in-house counsel's list of worries.

Recently I was asked to speak at a conference where my assigned topic was “things that keep me up at night.” I offered three subjects: 1) my five-year-old daughter; 2) my new puppy; or 3) the neighbor kid who appears to be learning every conceivable percussion instrument. The sound of crickets indicated that I misunderstood the assignment. On the topic of ethics, two “ripped from the headlines” situations concern me, and prompted me to give serious reflection on the effectiveness of our business ethics programs.

The first situation involves the seemingly cavalier way that otherwise successful individuals jeopardize their careers through the pursuit of curious dalliances. The incomprehensibility of these ethical collapses is confirmed by these well-known examples: Dominique Strauss-Kahn, Mark Hurd, Anthony Weiner, David Wu and so on. It’s well beyond the scope of this column and my expertise to explain why these individuals acted in such a manner, but their willingness to do so compels us to ask whether business ethics programs are capable of protecting organizations from these types of ethical failures. 

Here are a few diagnostic questions that may help you with such an assessment. First, are there any organizational “sacred cows” for which compliance measures are relaxed? Compromising compliance processes in the name of respect for a title, position or a person presents needless risk to the organization. 

Second, is the ethics program tuned to permit effective surveillance of high-risk corporate activities? This requires updated corporate policies that enable the maximum allowable surveillance of employee activities. For instance, if you have not updated your email review policies in light of recent case law, then you have some work to do. 

Third, are you influencing the internal audit team’s audit plan? Don’t underestimate the expertise, resources and processes under the control of the internal audit group. Point the internal audit team to politically sensitive compliance risks; it will keep you above the fray and assure that otherwise uncomfortable investigations, when warranted, are pursued.

The second situation involves risks inherent in globalization. As companies push to establish a foothold in “low cost” regions, the business culture in those locales may permit activities that could be considered inappropriate or illegal at the headquarters. Bribery is a well-known example but one that should already be managed given the Foreign Corrupt Practices Act enforcement activity. Other examples come in the form of less-obvious activities, such as entertainment expenses, uses of petty cash and gift giving. Managing these activities is tricky because they are defended as a business necessity under local custom. The intersection of corporate policies and local activities requires thoughtful articulation. 

Here are a few tips to manage this tricky ethical challenge: First, make sure local teams understand what behaviors are expected. Translate corporate policies and training. Ensure that your policies are easily locatable. Every employee should know exactly where your company’s policies can be found.  

Second, make sure that the tone from top executives provides unwavering clarity on corporate expectations. Use corporate blogs, all-hands meetings and the company’s intranet to enforce the message. Finally, get out from behind the desk and get to know the leadership who work away from headquarters. Policies that are articulated through face-to-face interactions are easy to understand and respect. While meeting with local executives, speak with local law firms and seek counsel on how other multinationals are managing the same issues. 

These are two challenges worthy of your attention; don’t let them keep you up at night.

Brian Martin is SVP and general counsel of KLA-Tencor Corp. Send your comments and best ethics practices to him at insideethics@gmail.com.

Brian Martin

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