Airplane II: The Sequel

Airplane II: The Sequel

A Growing Number of High-Profile Incidents Aboard Airplanes Evidence Industry-Wide Ethics & Compliance Failures

As April 2017 comes to a close, so closes a month for the airline industry that would make even Leslie Nielsen embarrassed. Between a near brawl between a stroller-wielding passenger, her supporter, and the airline staff; a passenger forcefully dragged off of an airplane for refusing to vacate his seat; cell phone cinematographers vying to become the next YouTube superstar and a variety of mass groundings due to horrible spring weather in the eastern half of the United States it is easy to say that April is a month to forget for the airline industry as a whole.

As the number of high-profile incidents grew exponentially throughout the month it is abundantly clear that airlines need to take a hard look at their staff training policies and codes of conduct to determine exactly what is most important. Failing to do so may cause the industry to collapse from within as it appears passengers have reached the boiling point of frustration with poor customer service and overall indecent treatment both in the terminal and on board aircraft.

Last week my colleague Darin Hartley wrote an excellent article analyzing the ties the recent airline incidents have had to de-regulation and lack of competition in the marketplace. Darin's article reminded me of the fact that airlines have the most captive audience possible, as passengers have a need to travel to see friends and family in an ever broadening (yet shrinking) globe. The airline industry understands this and has chosen to squeeze every potential profit dollar out of the consumer even at the expense of any semblance of customer service. Such a practice is in and of itself evidence of failed compliance practice.


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Just because the airline industry is relatively deregulated does not mean that airlines lack corporate responsibility to adhere to a set of ethical values for conduct and basic human decency. Although the argument can certainly be made that David Dao himself acted irresponsibly in refusing to abide by the contractual policy of random selection for removal (and Dao himself has a sketchy ethical history that we will not get into in this article), the resulting media firestorm certainly outweighs the utility of placing five employees on a 45 minute flight from Chicago to Louisville. The bottom line is there are a multitude of solutions that do not involve police, violence, and cell-phone cameras. Similarly, simple core policies and practice could have avoided the now infamous "stroller incident" that came hot on the heels of the United fiasco.

By implementing a policy for customer service, business ethics, and employee training the airlines could improve their relationships with customers quickly. Just last year I attended a seminar in Chicago that was given by two high-level Delta executives that discussed the need for innovative safety training for passengers onboard its flights, yet the seminar failed to recognize the fact that airline employees also need training on how to conduct themselves when faced with angry and/or irritated passengers. The time has come for airlines to take a stand and prepare their workforce on how to best deal with the types of incidents discussed above before they get out of hand. We can only hope they do so before it is too late.


Do you have questions about your current compliance training program? Contact us and we can work with you to make recommendations to augment and/or improve your current offering.

Syntrio is a leader in both the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of compliance violations within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our ethics and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on employment law and compliance that impact your company!  Don't forget to register for our upcoming May 18, 2017 free Webinar entitled "Training for the Compliance Triathlon"   

Written by Jonathan Gonzalez, Esq., Syntrio Advisory Board Member and Senior Legal Counsel

DOJ’s ‘Evaluation of Corporate Compliance Programs’

DOJ’s ‘Evaluation of Corporate Compliance Programs’

Two months ago, and in response to the corporate sector’s continued request for greater guidance of what the government wants to see in corporate ethics and compliance management, the US Department of Justice (DOJ) released its “Evaluation of Corporate Compliance Programs”. While this guidance is certainly more detailed and informative than the US Sentencing Guidelines, some companies may find it to not be what they intended. It certainly is not a definitive checklist that a company can implement for comprehensive protection. Nor is it a ‘get out of prosecution’-free card that allows a company to implement a simple plan to avoid regulatory intrusion.  But for well-meaning companies interested in actively managing their way to sound ethics and compliance practices, the DOJ’s guidance will serve to be very instructive.

The DOJ makes clear that its new guidance is based on the Department’s experience in reviewing corporate ethics and compliance programs as part of investigations and plea and settlement agreements. To this end, it reminds companies that the criteria that it uses to review such programs are based on fact-specific circumstances, which change from situation to situation. Nonetheless, the DOJ offers its guidance as just that--guide to what companies should consider in ethics and compliance management, not a final set of criteria.

The DOJ also articulates that an understanding of effective ethics and compliance management is progressive. This publication reflects and is influenced by prior guidance offered by the Department, the Securities and Exchange Commission (SEC), the Organisation for Economic Co-operation and Development (OECD), as well as the DOJ’s experience in many corporate investigations and plea and settlement agreements. Thus, the guidance is not intended to be comprehensive, and criteria can vary based on each case’s specific facts. So, it is not a checklist or a formula—which will be disconcerting to those companies that want such a tool and don’t want to invest in carefully considering appropriate management actions.

Still, the evaluation criteria that comprises this guidance is fairly comprehensive, much more detailed than simply the US Sentencing Guidelines’ recommendations and positioned in a way that should keep corporate leaders and ethics and compliance officer officers very busy for some time to come.


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Some important observations about this new guidance include the following:

  • Risk-based--Keeping with The Department and the SEC’s 2012 Resource Guide to the U.S. Foreign Corrupt Practices Act, this new guidance expects companies to prioritize their efforts based on an organization’s principal risks.
  • Process-based--The DOJ wants companies to build ethics and compliance processes, not just implement steps for one point in time. By definition, a process involves ongoing activities that adjust with changing circumstances. In this vein, the ethics and compliance program’s activities are expected to adjust to the organization’s changing circumstances. 
  • Thoughtful Decisions - The DOJ wants organizations to carefully consider their situations and choices and not simply seek to ‘check the box’ or follow behind other organizations.
  • Ethical Culture - The DOJ wants companies to infuse the ethics and compliance program into the organization’s culture and, at the same time, use the culture to reinforce the program’s activities and success.
  • Integration - The DOJ wants companies to integrate ethics and compliance objectives and activities into other business activities so that employees see ethics and compliance as ‘part and parcel’ with how the organization operates. 
  • Outcomes-Based -- Finally, the Department wants companies to build programs that produce valuable outcomes and to think through the ethics and compliance program’s design in this light. This expectation aligns with what we have been hearing in recent years from regulatory agreements and corporate monitorships: the key question we hear asked is, ‘How do you know that your program is successful?’

On the very important issue of training and communication, the guidance reinforces that formal education be risk-based and effective. It also expects leadership to communicate its actions regarding identified misconduct and the availability of guidance to help employees understand and apply policies.

The DOJ’s evaluation criteria also address other important considerations, such as how an organization uses and works with third parties and factors in mergers and acquisitions. This latter issue ratchets up the risk of ‘buying risk’, or taking on the risk of an acquired company.

One final issue that these evaluation criteria raise is ‘How does the company monitor its senior leadership’s behavior?” This is insightful in that it separates the senior leadership from overall compliance mechanisms, seemingly also placing accountability with the Board of Directors and ethics and compliance program management. Given recent high-level ethics failures, this makes sense that for any company, the buck does not stop simply with its senior management; others also have important responsibilities. As part of a regulatory inquiry or investigation, these individuals also may be called on the carpet. 


Would you like an objective review of your current training program from a trusted outside source?  Do you have questions about your current compliance training program? Contact us and we can work with you to make recommendations to augment and/or improve your current offering.

Syntrio is a leader in both the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of compliance violations within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our ethics and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on employment law and compliance that impact your company!

 

Written by Jason Lunday, Vice President of Product Development, Syntrio, Inc.

Book Review: How to Be a Wildly Effective Compliance Officer (Kristy Grant-Hart)

Book Review: How to Be a Wildly Effective Compliance Officer (Kristy Grant-Hart)

In my interview with Kristy Grant-Hart after reading her book, I found both the book and our discussion highly informative.  She is an in-the-trenches stalwart of compliance best practices and has penned a book, which gives the reader a bounty of best practices, ideas, and tips related to the role of the Compliance Officer.  While Ms. Grant-Hart’s primary audience for the book is obviously Compliance Officers, I believe anyone who is in the business of compliance, ethics, and employment law in an organization will get tremendous value, e.g., HR, Legal, IT, and executives.

Selfishly, as a Director of Marketing for an online compliance training company, Syntrio, I wanted to be able to get inside the head of Compliance Officers so that I could market and sell to that target audience better.   And How to Be a Wildly Effective Compliance Officer has helped me there too.

And We're Off

After an inspirational Foreword by Joe Murphy, the book contains eleven chapters, which build on each other to cumulate in a powerful set of tools for the Compliance Officer, or those soon to be Compliance Officers or those who want to know the role of the Compliance Officer better.

The first several chapters of the book help you get inside the Compliance Officer’s stakeholder heads and using their motivators to influence them to make the right decisions.  As a sales and marketing person, I find this approach refreshing.  In sales, there isn’t just a sales person pitching.  There is a buyer or buyers who must be persuaded to do what the sales person (Compliance Officer) wants him or her or the team to do.   The four primary motivators are Fear for Self, Fear for the Business, Noble Cause, and Competitive Edge.  Ms. Grant-Hart does a great job defining each of these and how to use them.

If you think senior leaders in organizations have all the power, you might be mistaken.  All organizations have the named power and covert power.  In other instances, I have called this positional power and market mavens, but I really like the moniker the author uses.   Strategically working with those with covert power who are aligned with the named power while focusing on the organization’s primary motivators is a trifecta of leverage, which will net positive results.

In addition to the already mentioned best practices, Chapter Three contains a Compliance Officer Risk Matrix, with a “Readiness for Change,” axis and a “Need for Change,” access.  With a series of questions, the Compliance Officer can tell where their organization stands on the Risk Matrix.  The author then provides specific recommendations for each of the four quadrants and how to up-level the compliance program, wherever you might be starting from.  I personally love books that provide these kinds of pragmatic tools, which you can start to use immediately.

Measure Twice - Cut Once

“You can’t manage what you can’t measure,” is an old but true business adage.  In Chapter Four, the author provides a variety of ways that Compliance Officers can show their leadership how well the compliance program is faring.  Like the previous chapter, Ms. Grant-Hart provides a practical set of prospective compliance program measures, including a great sample of a Compliance Dashboard, which can be reported on monthly, quarterly, and annually.   If your leadership doesn’t know the results of your good compliance work, how can they support it with the requisite resources?  This is a key role for any Compliance Officer.

Compliance Officers can often be associated with negativity and criticality.  In Chapter Five, the author provides a plethora of tactics that can help overcome these potential perceptions.  If you aren’t approachable, and employees and staff cannot talk openly with you, your effectiveness may be lessened.   I found Chapter Five to be one of my favorites and the tips Kristy provides in here are very easy-to-implement, yet powerful.

Have you ever worked with an in-your-face salesperson who wouldn’t let you speak or ask questions or raise objections?  Do you remember how annoying that was?  Chapter Six is about the art of listening how powerful this skill is for anyone in the sales (think Compliance Officer) role.  The more you listen to your clients.  The more open-ended questions you ask your clients.  The more they will share with you.  This lets you pull together a solution, which will truly align with their primary motivators and their business needs.  AND, it minimizes the chance of recommending the wrong solution(s).

In Chapter Seven, the reader is exposed to some higher-level persuasion techniques.  Note that ALL sales are about making a persuasive argument.  The author introduces some concepts, which can help the Compliance Officer get the desired end result.  These include the appropriate use of fear (and follow-up actions), the relationship between emotion and logic in the buying process, the power of asking for a favor, and the secret word that will make you 50% more persuasive.  You’ll need to read the book to see what that word is.

As a person who has been in a sales role, in one way or another, for the last 25 years, I really enjoyed Chapter Eight, “I’m the Expert.”  Think about it.  Especially when purchasing services or complex products, don’t you want to buy from an expert?   I have found being a Subject Matter Expert (SME) in your field can be a catalyst for sales.  This chapter provides plenty of ways the Compliance Officer can become an expert and with this drive more influence in the organization.  This includes activities such as writing articles, speaking at conferences, and seeking organizational compliance awards.

All professions have industry networks.   Compliance has a robust and growing network of associations, conferences, professional regional groups, etc., which can provide a great way to develop connections and relationships in your field.  In Chapter Nine, the author even includes some great ways to get the maximum mileage from any conference Compliance Officers attend.  There is nothing worse than paying thousands of dollars (conference fees, flights, hotels, per diem, etc.) and coming home empty handed.

Chapter Ten, which is the last chapter before the summary, helps Compliance Officers deal with some of the inevitable downs, they will experience as part of their careers.  Everyone will experience challenges, defeats, and even sometimes contemplate whether they are in the right role and/or company.  Ms. Grant-Hart provides a pragmatic Compliance Officer Decision Tree to help get the right answer about difficult compliance-related decisions.

In summary, this book provides me with everything I seek in a professional book:

  • Insights based on years of experience
  • Practical, easy-to-use tools
  • Methods for self-improvement
  • High return on my reading investment.

If you want to know how to be a better Compliance Officer or like me, you just want to know more about what makes a Compliance Officer tick, I highly recommend you get a copy of this book for yourself and your staff.


Do you have questions about your current compliance training program? Contact us and we can work with you to make recommendations to augment and/or improve your current offering.

Syntrio is a leader in both the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of compliance violations within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our ethics and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on employment law and compliance that impact your company!

 

Written by Darin Hartley, Director of Marketing, Syntrio, Inc.

Seventh Circuit Court of Appeals Explicitly Holds that Sexual Orientation Discrimination is Sex Discrimination Prohibited by Title VII

Seventh Circuit Court of Appeals Explicitly Holds that Sexual Orientation Discrimination is Sex Discrimination Prohibited by Title VII

April 4, 2017 will forever be seen as a landmark victory for gay rights advocates, as the United States Court of Appeals for the Seventh Circuit ruled in an 8-3 decision Hively v. Ivy Tech Community College, No. 15-1720 (7th Circuit April 4th, 2017) that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

Compliance officers, employment attorneys, and human resources professionals (along with civil rights advocates and obviously LGBT employees) have long been seeking clarity on the issue of whether same-sex discrimination is prohibited under Title VII. Indeed, the EEOC has been prosecuting cases under Title VII on behalf of LGBT employees for several years, but neither the United States Supreme Court nor the United States Court of Appeals had explicitly decided the issue until yesterday.


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The key takeaway from this decision is that the Seventh Circuit was very clear in its decision that sexual orientation discrimination is an illegal form of sex discrimination under Title VII. Within that Circuit, all federal courts are bound to follow the Seventh Circuit’s decision in Hively when deciding sexual orientation employment discrimination cases. Conversely, for future United States courts of appeals, there will be no need to draw inferences, as there is now clear persuasive authority from which to draw.

Despite the importance of Hively both within and outside the Seventh Circuit, nationally speaking federal law still cannot be considered settled on this issue, as the United States Supreme Court still has yet to weigh in. Therefore, in federal courts outside Illinois, Indiana, and Wisconsin, the precedential value of Hively still is still persuasive rather than binding.

This means that a United States court of appeals in a more conservative circuit is still free to hold that sexual orientation discrimination does not violate Title VII’s prohibition on sex discrimination until there is a Supreme Court decision either affirming Hively or another similar case where the Supreme Court reaches that decision.

Hively v. Ivy Tech Community College Facts and Procedure

The Plaintiff in Hively was Kimberly Hively, an adjunct professor at Ivy Tech’s campus in South Bend, Indiana who began teaching there in 2000.  After applying unsuccessfully for at least six full-time positions between 2009 and 2014, Hively’s contract was not renewed in the summer of 2014. Subsequently, Hively filed an EEOC charge alleging that she was being blocked from full-time employment due to her sexual orientation. She received a right-to-sue letter from the agency and filed a lawsuit for sex discrimination under Title VII.


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The United States District Court for the Northern District of Indiana granted Ivy Tech’s motion to dismiss (for failure to state a claim of sex discrimination) with prejudice, and Hively appealed to the Seventh Circuit, which issued its opinion in her case late yesterday afternoon.

Seventh Circuit Analysis in Hively

Acknowledging that the United States Supreme Court has never considered the question of sexual orientation discrimination, the Seventh Circuit reversed the district court’s judgment and stated: “We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.” The Seventh Circuit opinion relied primarily on the United States Supreme Court decision in Price Waterhouse Coopers v. Hopkins, 490 U.S. 228 (1989) (holding that gender stereotyping falls within Title VII’s prohibition against sex discrimination); and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (holding that same-sex harassment is illegal sex discrimination under Title VII).

In reaching its decision, the Seventh Circuit stated that the United States Supreme Court’s sidestepping the direct issue of whether sexual orientation discrimination is protected sex discrimination led to the Circuit courts (and the district court in this case) concluding that outdated precedent essentially required them to hold that it was settled law that sexual orientation discrimination was not illegal sex discrimination and that while that position was correct absent a direct holding from the Supreme Court or a Federal Court of Appeals the time was right to re-examine the issue.

The Hively Holding

Relying on the Supreme Court’s analysis in Price Waterhouse and Oncale, the court determined although Congress “may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” Therefore, the court found it impossible to extract sex stereotyping and same-sex harassment without also applying the same logic to sexual orientation discrimination just because the full scope of the term “sex” as a protected class was not necessarily contemplated by Congress when it drafted Title VII in 1964.


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The court closed its analysis with the following [very explicit] language: “We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

What Does the Seventh Circuit’s Decision in Hively Mean for Your Business?

If your company is subject to Title VII and is located in Illinois, Indiana, or Wisconsin it is now illegal under federal law to make employment decisions on the basis of their sexual orientation.  Sexual orientation discrimination was already illegal for all employees under the state laws of Illinois and Wisconsin and for state employees in Indiana, so legally speaking, not much changes today outside Indiana. 

That said, the majority of employment discrimination charges are filed under Title VII in the Seventh Circuit (rather than state charges) because it is procedurally easier for a Plaintiff to get into federal court in all three of those states than to go the state route. Now that the Seventh Circuit has made clear that sexual orientation discrimination is illegal in that Circuit it is very likely we will see a larger number of discrimination cases grounded in employment discrimination on the basis of sexual orientation.

For the rest of the country, Hively is certainly something to be aware of, and the case makes it clear that the tide has turned toward nationwide illegality of sexual orientation discrimination. Your company should already have a policy prohibiting sexual orientation discrimination regardless of its legal status in 2017 just for ethics purposes, and also should be training employees on the negative impact that any sort of employment discrimination can have. But on a more macro level the Hively decision on April 4, 2017, marks an enormous victory for LGBT rights advocates across the nation, as it is going to be extremely persuasive to circuit courts across the country. Likewise, this will likely be the impetus for the Supreme Court to rule on the issue, almost certainly in favor of LGBT employees.


 

Is your organization ready for the potential changes in employment law based on this case?  Contact us about your current compliance training program and we can work with you to make recommendations to augment and/or improve your current offering.

 

Syntrio is a leader in both the ethics and compliance field, as well as human resources and employment law, and is prepared to help your company implement a compliance program aimed at reducing the potential impact of compliance violations within the organization. Syntrio takes an innovative philosophy towards compliance program design and strives to engineer engaging, entertaining, and thought-provoking content. Contact www.syntrio.com for more information about our ethics and code of conduct online courses and remember to follow us on Facebook, TwitterGoogle Plus and LinkedIn for daily updates on employment law and compliance that impact your company!

 

Written by Jon Gonzalez, Esq., Syntrio Advisory Board Member.