Twenty-five times in 18 pages – that’s how many times the word “train” or “training” appears in the Department of Justice’s Evaluation of Corporate Compliance Program’s original and updated guidance (“Guidance”). That’s more than once per page. To put that in perspective, the word “diligence” appears only 15 times, and the word “board” only 11. Training is clearly a focus for prosecutors.
On June 1, 2020, the DOJ updated its guidance document to reflect, as Assistant Attorney General Brian Benczkowki said, “additions based on our own experience and important feedback from the business and compliance communities.”
The new language in the guidance is fascinating because it sets out the updated expectations of prosecutors. Companies are once again on notice that the line in the sand has shifted, and they need to respond now to meet those new expectations. What are those expectations with respect to training and training programs?
Lesson 1: Microlearning is Acceptable – and Potentially Encouraged
The updated guidance includes a statement noting that companies have “invested in shorter, more targeted training sessions to enable employees to timely identify and raise issues to appropriate compliance, internal audit or other risk management function.”
Microlearning is defined by short-burst training limited to one or two topics, typically lasting between one and ten minutes. It was controversial for a long time. Ever since companies began receiving mitigating credit for FCPA violations when “enough” training was given so that the prosecutor believed that the bad actor maliciously violated the law, companies have been trying to ensure that their training programs are robust enough to overcome regulatory scrutiny. That has frequently meant hour after hour of repetitive, ineffective training meant only to satisfy prosecutors’ presumed expectations.
The explicit mention of microlearning in the Guidance legitimizes it as a tool for adult learning. While microlearning will never take the place of a full training session for higher-risk employees, its endorsement is great news for compliance officers wishing to mix up their training delivery. Emtrain’s microlessons allow companies to maintain a dialogue on a given topic with 3-5 minute lessons that can address a single timely concept in the news. Companies can also assemble and deploy a variety of microlessons for a specific campaign on a given topic.
Lesson 2: Questions and Answer Expectations Skyrocketed
The DOJ significantly upped the ante when it instructed prosecutors to consider, “whether online or in-person, is there a process by which employees can ask questions arising out of the trainings?”
Asking questions in-person is easy. People tend to just raise their hands or interrupt. Online training? That’s another story. Emtrain’s Ask the Expert feature enables employees to ask questions about compliance, bias, harassment, and diversity and inclusion as they come up. It’s all anonymous, and answers are sent straight to your inbox.
It’s unrealistic to expect people to write down their questions during online training, then to email the compliance department to follow-up on anything they didn’t quite understand. The ability to ask questions in real-time, even if they aren’t able to answer immediately, significantly increases the likelihood of good comprehension.
Lesson 3: It’s all about Data and Proving Effectiveness
A new sentence in the Guidance asks, “Has the company evaluated the extent to which the training has an impact on employee behavior or operations?” Wow. That is a high bar. Not only are we asked to use a risk-based approach to assign training, keep training engaging, ensure that training is completed, and keep training records, but now we’re also expected to measure whether the training has impacted employee behavior and/or operations.
How can we prove that training has had an impact? Data. Good data and metrics can help us to prove that training has had an impact on the behavior or employees. Emtrain AI prompts learners with provocative video content, then employee sentiment questions gauge perceptions of workplace culture issues. This allows administrators to benchmark their workplace culture against other companies, and identify areas that may be high risk for certain unhealthy behaviors.
Data collection and review merited an entirely new paragraph within the guidance. Data and analytics that prove effectiveness rather than simply activity, is the most potent theme of the update.
As compliance programs evolve and become more sophisticated, so does the DOJ’s expectations. It isn’t enough to simply have a training program. The program must be tailored for the risk profile of the company, and the company must have the capacity to prove that the training is changing employee behavior for the better.