JR Richard, Simone Biles and institutional justice | Thomas Renard

JR Richard passed away last week. You don’t know that name? He is the greatest pitcher in the history of the Houston Astros whose career tragically ended in a stroke at the age of 30. How dominant was Richard? In his senior year in high school, he didn’t allow a single earned point. In the majors, he struck out nearly 1,500 batters over 9 seasons and hit a fast pitch at 100 mph when that speed was almost unknown.

According to his obituary in the Houston Chronicle, “Richard went 107-71 with a 3.15 ERA and 76 full games for the Astros. He had a 20-game winning season in 1976 and won 18 or more games from 1976 to 1979. He became the first pitcher for the Astros to record 300 strikeouts, including 303 in 1978, leading the majors. He broke that record with an MLB record of 313 in 1979, when he also led the National League in ERA (2.71) and finished third in the Cy Young vote against Cubs reliever Bruce Sutter and teammate Niekro. . Among modern-day pitchers, Richard is one of only six with consecutive seasons of 300 strikeouts, and he was the first National League right-hander to reach the 300 plateau.

Richard was also a victim of the same racism Simone Biles experienced recently. In 1980, he was on the invalids list for what was called at the time a “tired arm”. He received fierce criticism from the Houston sports media for not playing while the Astros were in their first real pennant race. Of course, he was simply blamed for being lazy and not tough enough to fight. It turned out that a blood clot had formed which Astros’ medics discovered but did not operate because they did not want to interfere with his ability to throw. They allowed him to train, which led to him collapsing on the pitch during training following a stroke.

Biles withdrew from the team gymnastics competition due to “mental health” issues or something we know as “twists”. It turns out that twisties are a medical condition, not a mental health issue. Of course, racist, right-wing pundits immediately stalked Biles the same way Houston sports writers stalked Richard over 40 years ago. For Biles, it was giving up his team at the Olympics. For Richard, it was abandoning his team in a pennant race. Richard almost died because the Astros didn’t want him to undergo the surgery he needed to get his arm back in the 1980 pennant race. Richard tried but was never able to throw well enough to stay put. new to the Astros team. Biles was able to come back to win a bronze medal on beam.

To say that those who criticized Richard or Biles treated them fairly contradicts almost all levels of humanity. Yet, in the context of the company, the fair treatment of employees is an essential part of any corporate culture. Kyle Welch and Stephen Stubben, in their 2019 article titled “Evidence on the use and effectiveness of internal whistleblowing systemsNoted that a strong whistleblower reporting system is a testament to a functional and ethical corporate culture. Employees who can report issues fairly, without fear of retaliation, have more power to make the business more efficient and profitable. Yet an equally interesting finding was that there were strong internal relationships, employees were more likely to speak out to improve overall business processes, thus making the company more profitable.

The question of institutional justice emerges most clearly in the field of discipline. This can be in the overall application of a compliance program to all employees, board members and senior managers. As stated in the FCPA 2020 Resource Guide, “A compliance program should run from the boardroom to the supply room – no one should be out of reach. The DOJ and the SEC will therefore examine whether, in applying a compliance program, a company has appropriate and clear disciplinary procedures, if these procedures are applied reliably and expeditiously, and if they are proportionate to the violation.

This mandate was presented in the 2017 FCPA Law Enforcement Policy which stated: “Appropriate discipline of employees, including those identified by the company as responsible for the misconduct, either through direct participation or failure to supervise, as well as those with supervisory authority over the area in which the criminal conduct took place. [emphasis supplied]

All of these concepts were continued in the 2020 Corporate Compliance Program Assessment Update, which said: “Another characteristic of the effective implementation of a compliance program is the establishment of compliance incentives and non-compliance disincentives. Prosecutors should assess whether the company has clear disciplinary procedures in place, enforce them regularly across the organization and ensure that procedures are proportionate to violations. “

One of the areas where you can more fully operationalize your compliance program is to ensure that discipline is applied appropriately and consistently across an organization and to reward employees who exhibit such ethical behavior and consistent in their individual work practices. In addition to providing a financial incentive for ethical behavior, it also provides a sense of institutional justice. Institutional justice stems from procedural fairness and is one area that will bring credibility to your compliance program.

Discipline administration. One area where institutional justice is paramount is the administration of discipline after any compliance incident. Discipline must not only be administered in a fair manner, but it must be administered in a consistent manner across the organization in the event of a violation of any compliance policy. Failure to administer discipline in a consistent manner will destroy any vestige of credibility you may have developed.

Likewise, there must be real consequences for an employee who violates your compliance program. If regulators are knocking on the door and you haven’t sanctioned employees for violating the code of conduct or compliance program for several years, the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) will conclude. quickly that you’re not serious about compliance. This means that a Chief Compliance Officer (CCO) must discipline those who commit compliance violations, regardless of their position within the organization.

Employee promotions. In addition to the discipline area which can be administered after the completion of any compliance investigation, you must also firmly place compliance as part of ongoing employee reviews and promotions. If your business is seen to progress and only reward employees who reach their numbers by whatever means necessary, other employees will certainly take note and it will be understood on what management evaluates and rewards employees.

Internal investigations. A third area concerns internal company investigations. If your employees don’t believe the investigation is fair and impartial, then it is not fair and unbiased. In addition, those involved must have confidence that any internal investigation is treated with seriousness and objectivity. One of the main reasons employees will deviate from a company’s internal phone support process is because they don’t think the investigation process will be fair. (Another result of the Welch / Stubben study).

An often overlooked role of any CCO or compliance professional is to help provide employees with institutional justice. Whether your compliance function is viewed as fair in the way it treats employees, in areas as diverse as financial incentives, promotions, appropriate and consistent discipline applied across the world; employees are more likely to let the compliance department know when something is happening. If employees believe they will be treated fairly, it will go a long way in making your compliance program more fully operational.

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About Linda Stewart

Linda Stewart

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