Culture Shift
A compliance-related culture shirt is underway. It increase the value of fostering a culture of integrity where employees feel confident that their company does things the right way, and where they can raise questions without fear.
The shift involves a lower bar for employees to get the attention of enforcement authorities, and a lower value of some defensive litigation strategies. Two signals of this shift in 2024 include DOJ creating yet another “whistleblower” program and a federal district court ruling the False Claims Act’s qui tam provisions unconstitutional (U.S. ex rep Zafirov).
Consider the implications:
It’s easier for an employee or third party to pick up the phone and report to a hotline than it is for them to engage an attorney and build a case as a qui tam relator.
Whistleblower complaints may survive contract-based release of claims, where litigation could be waived (for example, in an NDA or Separation Agreement).
Data Analytics across various whistleblower programs can help prosecutors target companies whose own employees do not appear to trust them, and initiate investigations based on aggregated reports rather than a specific allegation.
The key is to have a culture of integrity that encourages internal reporting and the resolution of concerns so that team members do not resort to external reporting. This has always been true. The shift underway is making it a higher priority.