Defining and Measuring Effectiveness: Responding to the DOJ’s Evaluation of Corporate Compliance Programs Speak Up Guidance

The Department of Justice (DOJ) has provided much-needed insight for ethics and compliance leaders tasked with evolving internal reporting mechanisms and investigations procedures.

Earlier this year, the DOJ implemented its pilot whistleblower program, which created a monetary reward structure for employees who voluntarily report corporate misconduct to federal authorities. This creates new pressure on companies that either lack internal reporting channels to uncover misconduct or fail to act on reports. Through the DOJ’s updates to their Evaluation of Corporate Compliance Programs, companies now get a clearer view of what the Department expects when examining the strength and effectiveness of an employee reporting system and process.

We’ve compiled recommendations that Compliance, HR, ER, and Legal leaders can lean on when evolving and enhancing their programs in light of this guidance, with a particular emphasis on defining and measuring your Speak Up Program to fit the ‘adequate, effective, and well-designed’ expectations of the DOJ.

‘Adequate and effective’ for Speak Up programs comes down to engagement and usage. So how do you demonstrate the company is effective at encouraging speaking up without relying on volume of reports alone?

As you take stock of your current program and think about demonstrating impact on company Speak Up culture, here are a few metrics you can establish and monitor to prove to your business– and to the regulators–that you are evaluating and evolving your Speak Up program approach.

Benchmark your Trust Gap

Benchmarking and continuously measuring your internal Trust Gap is the most effective way to demonstrate ongoing improvement and effectiveness of your compliance program. 

Globally and across industries, there exists a gap between employee’s willingness to report (93%) and actual reporting rates (46%). Closing this trust gap is crucial for building a reliable compliance environment. This is the reality you’re operating in – a company with 10,000 employees should expect 500-1,500 incidences of misconduct a year will occur, half of which will go unreported. Mitigating risk is not possible when half of the issues are unsurfaced. 

Data collected by Vault Platform has revealed the scope of this issue:

• Frequency of Misconduct: Up to 48% of employees witness or experience misconduct monthly 
• Lack of Employer Accountability: More than 50% of employees feel their employers need to be more ethical and transparent. 
• Impact on Personal Wellbeing: Nearly 50% of employees experiencing misconduct report a negative effect on their wellbeing, which leads to absenteeism and decreased productivity.
• Employee Retention Concerns: Misconduct impacts retention, with a significant portion of affected employees eventually leaving their roles due to unresolved issues.

With 86% of employees emphasizing the need for safe reporting channels, an environment that bridges the Trust Gap empowers employees to speak up, strengthening both compliance and organizational health.

Data from Ethisphere shows that 100% of the World’s Most Ethical Companies® measure employee perceptions of ethical culture with 74% doing so with a dedicated ethical culture or compliance program survey, as opposed to one or two questions in a broader employee engagement survey. These same companies are administering these surveys at least every two years (21%), if not annually (49%).

Employees are reluctant to report concerns if they don’t believe the reporting process works or that the company takes any actions on reports. To bolster employee confidence in the reporting and investigation process, 69% of the World’s Most Ethical Companies® companies provide employees with some level of reporting on the number and types of concerns that were reported as well as the results of those reports and any subsequent investigations.

To benchmark and address the Trust Gap effectively:

• Survey Employee Willingness and Experiences: Effective Speak Up Programs require cross-functional collaboration. Partner with HR and People Teams to benchmark willingness to speak up versus actual speak up rates at least annually. Regularly survey employees to track their readiness to report issues and to monitor progress over time to help identify barriers and opportunities to increase awareness of actual Speak Up processes.
• Monitor Reporting Rates: Measure actual reporting volume on all channels. It’s best practice to also monitor outcomes, focusing on resolutions and the impacts on productivity, employee well-being, and retention. Benchmarking against yourself year over year with comprehensive analytics is the most effective approach, as industry or geographic speak up programs vary.
• Calculate your Trust Gap: Willingness to Speak Up (as percentage of employee population) minus your Actual Report Rate for the same period (as percentage of employee population) = Trust Gap

Compliance DOJ ECCP GUIDANCE

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Monitor Retaliation Fears as a Speak Up Barrier

Retaliation is the most commonly cited barrier to speaking up at work. 48% of employees cited concerns about retaliation as preventing them from speaking up about misconduct. 

Some leaders see this data point and jump to forming an anti-retaliation program and increasing communication about anti-retaliation policies. But to focus on policy without an approach to building psychological safety will set you up for failure. 

33% of employees do not believe anti-retaliation policies will be enforced. 

The foundation of a successful compliance program–and moving the needle on retaliation fears– lies in the organizational culture. Compliance leaders must work actively to cultivate an environment where employees feel safe to voice their concerns which means increasing transparency, demonstrating accountability, and proving you are Listening Up.

To foster an open and trusting culture:

• Proactively Position Compliance as Listening Up: 50% of employees who witness or experience misconduct will not report. Listening to employee feedback is just as crucial as encouraging them to speak up. Compliance leaders should prioritize creating channels through which employees feel heard and respected. Regularly evaluate employee sentiment and belief that the ethics, HR, and/or leadership teams are listening.
• Increase Investigations Transparency: Regularly bring awareness to the company’s commitment to ethical behavior and compliance through various channels—emails, team meetings, and town halls. Consider developing reports that promote transparency into aggregate resolutions metrics.
• Demonstrate Accountability- Ensure that executives and managers exemplify the values of transparency and accountability in their actions and decisions.

Best Practice Spotlight:

Allianz Life’s VP & Chief Ethics and Compliance Officer, Steve Koslow, speaks to the value of a Hear Me/I’m Listening Culture, “There is a power paradigm in a speak up culture message. Rather than empowering employees to speak up, change the power dynamic and say we are listening, we hear you. Shifting the compliance frame of mind from Speak Up to a Hear Me culture shifts the power paradigm.”

Review and Revisit Intake Channel Preferences and Promotion

‘Another hallmark of a well-designed compliance program is the existence of an efficient and trusted mechanism by which employees can anonymously or confidentially report allegations of a breach of the company’s code of conduct, company policies, or suspected or actual misconduct.’ 

The DOJ emphasizes that compliance programs must be dynamic and adaptable. Compliance leaders should regularly evaluate and refine their programs based on employee feedback and changing regulatory environments.There are three constant changes within our workplaces: People are changing, technology is changing, and communication preferences are constantly changing.  

Compliance leaders must ensure that reporting mechanisms are easily accessible and user-friendly to encourage employees to speak up. Before misconduct occurs is the best time to educate and assess awareness and comfort with available intake channel options. All employees should be aware of their options for speaking up, both directly and anonymously. 

77% of employees want an anonymized app-based reporting channel.

73% will report if they don’t have to speak to anyone.

Employees shouldn’t have to navigate a choose-you-own adventure style code of conduct when attempting to make a report. Every decision your employee is faced with after experiencing or witnessing misconduct should be propelling them towards making a report. Assess what is working well and feeling safe, and expand that approach.

To keep a pulse on meeting employees where they are: 

• Simplify the Speak Up Landscape – Complicated processes can discourage employees from reporting issues, leading to a culture of silence that is detrimental to compliance efforts. Consolidate your Speak Up tech stack optimizing for trust, confidentiality, and ease of use. 
• Emphasize accessibility: Provide frictionless reporting channels that reflect employee preferences. While some may prefer to rely on an anonymous hotline, others prefer online portals that allow them to report anonymously while tracking their case.
• Anonymous channels should be varied and accessible by multiple avenues (app, web, phone, direct). The key is to remain creative in reducing reporting friction. If other channels are commonly used day-to-day, such as Slack, consider incorporating the messaging app into a reporting channel. This flexibility accommodates different comfort levels and preferences.Identify which channels are most utilized, and take it a step further and learn which are most trusted. 
• Equipping managers for ethics pulse taking: Ethisphere’s Speak Up Culture Report shows the people who do report have a strong preference (5:1) for direct to internal human reporting. Emphasize manager training for hard conversations, active listening, and ethics pulsetaking. Regularly assess how aware and confident managers feel identifying ethically gray and reportable situations.

Incorporating these best practices into compliance programs can significantly enhance the culture of speaking up within an organization and prepare you to demonstrate your commitment to data-driven effectiveness. By identifying your trust gap, fostering an open culture, and simplifying reporting mechanisms, compliance leaders can build a resilient, adequate compliance program that not only meets DOJ expectations but also empowers employees.

This environment, where employees feel safe and encouraged to voice their concerns, is not just a regulatory obligation– it is a strategic advantage. Benefits include decision-making, increased employee engagement, and a stronger overall organizational culture. As compliance leaders navigate the updated guidance from the DOJ, prioritizing employee engagement and feedback will be crucial for driving compliance success and fostering long-term ethical business practices.

Summary:

Key metrics for identifying the Trust Gap

1. Willingness to report 
2. Witnessing or experiencing misconduct
3. Actual Reporting volume

Key Speak Up Barrier Metrics:

1. Awareness of Anti-Retaliation Policies
2. Belief Anti-Retaliation Policies will be enforced
3. Belief Compliance (and/or HR) is listening to employee concerns and issues

Key Metrics for Intake Channel Review

1. Awareness of reporting options
2. Comfort with available reporting options
3. Trust in anonymous reporting options
4. Manager survey: awareness of code of ethics
5. Manager survey: comfort with identifying ethical gray situations