Waiver Culture: The Unintended Consequence of Ethics Compliance    

The passage of the U.S. Sarbanes-Oxley Act (2002) spawned a series of compliance and ethics programs--the revised Principles of Federal Prosecution of Business Organizations known as the Thompson Memo (Thompson, 2003), the revised Federal Sentencing Guidelines that included the Effective Compliance and Ethics Program and the corporate 'culpability score' (U.S. Sentencing Commission, 2004), and another revision of the Principles of Federal Prosecution of Business Organizations now known as the McNulty Memo (McNulty, 2006). These programs were meant to shift business toward an 'organizational culture that encourages ethical conduct and a commitment to compliance with the law' (U.S. Sentencing Commission, 2007). These developments spurred human resource departments and legal counsel to draft new workplace policies to embrace, implement, and monitor compliance programs. Consequently, there was a dramatic increase in the number of businesses with some kind of ethics training: from 44% in pre-guideline 1987 up to 92% in post-guideline 2005 (Berenbeim, 2006). Because compliance with the McNulty Memo and Federal Sentencing Guidelines can substantially reduce an organization's sentence of improper conduct or cause the government not to prosecute (Berenbeim, 2006), an organization under investigation could turn to its newly minted compliance programs and its cooperation as a shield. But these federal guidelines lacked a clear definition of an organization's 'cooperation' and whether a lack of cooperation could be viewed as obstruction of justice and thereby increase punishment of that organization.

Genova, Gina L. Business Communication Quarterly (2008). Articles>Business Communication>Legal>Ethics