Corporate Compliance and Root Cause Analysis [Could it keep your management out of jail?]
Legal Reasons to Have the Best Root Cause Analysis
You never want to find your company in front of a judge being sentenced over an environmental or safety crime. But if you do, you should understand that your corporate compliance program will be under scrutiny.
Here is what the DOJ has to say about corporate compliance programs and sentencing for corporate crimes:
The Principles of Federal Prosecution of Business Organizations require prosecutors to assess “the adequacy and effectiveness of the corporation’s compliance program at the time of the offense, as well as at the time of a charging decision.” JM 9-28.300. Due to the backward- looking nature of the first inquiry, one of the most difficult questions prosecutors must answer in evaluating a compliance program following misconduct is whether the program was working effectively at the time of the offense, especially where the misconduct was not immediately detected.
U.S. Department of Justice Guidelines
The DOJ guidelines for federal prosecutors say:
To determine whether a company’s compliance program is working effectively at the time of a charging decision or resolution, prosecutors should consider whether the program evolved over time to address existing and changing compliance risks. Prosecutors should also consider whether the company undertook an adequate and honest root cause analysis to understand both what contributed to the misconduct and the degree of remediation needed to prevent similar events in the future.
The DOJ guidelines say that the company should document the company’s response to a compliance issue including discipline taken or remediation (corrective actions). The guidance specifically says:
Have the company’s investigations been used to identify root causes, system vulnerabilities, and accountability lapses, including among supervisory managers and senior executives? What has been the process for responding to investigative findings? How high up in the company do investigative findings go?
Finally, a hallmark of a compliance program that is working effectively in practice is the extent to which a company is able to conduct a thoughtful root cause analysis of misconduct and timely and appropriately remediate to address the root causes.
These two guidelines imply that your root cause analysis system should identify Management System root causes and have risk-based, SMARTER corrective actions.
Importance of Compliance
Your corporate counsel can explain the importance of your compliance program IF you get in regulatory trouble. But from the brief explanation above, you need to know about advanced root cause analysis and you need to have the best root cause analysis program implemented to reduce your potential liability under the sentencing guidelines.
But there is an even MORE IMPORTANT reason to have the best root cause analysis as part of your compliance program. That reason is that implementing outstanding root cause analysis can help you prevent major accidents (compliance issues) by analyzing and fixing precursor incidents to prevent major breaches of compliance.
Learn More About Advanced RCA and Compliance
First, to learn more about TapRooT® Advanced Root Cause Analysis, you should attend TapRooT® Training. Here is a link to the course descriptions:
And here is a link to the upcoming public course schedule:
2021 Global TapRooT® Summit
What about further learning on compliance and root cause analysis? We have you covered there too! The 2021 Global TapRooT® Summit has a new track:
Compliance Best Practices Track
Topics in the Compliance Best Practice Track include:
- Gaining Management Support for Improvement
- Accident, Negligence, or Knowing Conduct? How Federal Criminal Law Enforcement Views Environmental Incidents
- Admiral Rickover & Conservative Decision-Making
- Improving Management System Compliance
- How to STOP Normalization of Deviation
- Building a Robust RCA Program by Utilizing Lessons Learned
- TapRooT® Users Share Best Practices
Mike Fisher, Office of Criminal Enforcement, Forensics, & Training, U.S. EPA; Tyler Amon, Special Agent-in-Charge, EPA Regions 1&2; and Matt Goers, Resident Agent-in-Charge, Alaska Resident Office, U.S. EPA Criminal Investigation Division will be presenting the Accident, Negligence, or Knowing Conduct? How Federal Criminal Law Enforcement Views Environmental Incidents best practices session.
They will explore how preventable incidents, events, and conditions may meet the elements of a crime. Presented by two federal criminal investigators and a seasoned government attorney, this session will share the factors used by the U.S. Environmental Protection Agency to determine whether incidents merit criminal investigation. The session will answer the question of who determines whether the government’s response to an incident will include criminal charges, and how such determinations occur. Examples of preventable incidents, events, and conditions leading to criminal charges will be presented.
If compliance is a concern for your company, you should attend this track at the 2021 Global TapRooT® Summit in Knoxville, TN, on June 16-18.
You can attend in-person or VIRTUALLY. Get more info about virtual attendance here…
Want more information about all the best practice sessions at the 2021 Global TapRooT® Summit? Click on the link below…
And for more information about the pre-Summit Courses on June 14-15, click on this link…
Don’t wait! The Summit is rapidly approaching and you need to register today to make your plans and help us make ours!