by Juan Manuel González | Mar 19, 2024 | Noticias-en, Opinions
In the field of corporate compliance, the effective implementation and implementation of programs and systems for the prevention and management of risks such as money laundering and corruption is increasingly important. One of the most recent documents from the United States Department of Justice (DOJ) points to this conclusion, which consists of a guide for the evaluation of corporate compliance programs, aimed at federal prosecutors in charge of prosecuting companies for participating in acts of corruption and transnational bribery, in application of the Foreign Corrupt Practices Act (FCPA).
The aforementioned guide is intended to give prosecutors tools to “make informed decisions about whether, and to what extent, the company’s compliance program was effective at the time of the crime and is effective at the time of the accusation” in order to determine its merit to exonerate liability or mitigate the penalty imposed on the company. The second of the three cardinal aspects that the guide gives to evaluate the programs, inquires about whether the company’s compliance program has adequate resources and powers to function effectively, and the third of the criteria to answer this question is directly related with compensation and consequence management structures, in other words, establishing incentives for compliance and disincentives for non-compliance.
The Superintendency of Companies of Colombia, as regulator of the most extensive compliance programs in the country (SAGRILAFT and PTEE), shares the opinion that sanctions and compensation schemes are an important, even essential, element of an effective compliance program. Therefore, both Circular 016 of 2020 (SAGRILAFT) and Circular 011 of 2021 (PTEE) instruct obligated subjects to include this element in their programs, as follows:
– Section 5.1.2. of Circular 016 of 2020 says that: “The SAGRILAFT must include sanctions or consequences for employees, administrators, associates or third parties, for non-compliance or non-observance of its provisions.”
– Section 5.1.5.3.2, literal g, establishes that the compliance officer must implement “internal investigation procedures in the Obligated Entity to detect non-compliance with the PTEE and Acts of Corruption”; and section 5.1.2. It says that “the PTEE must include, in a clear and simple way, the consequences of violating it.”
Additionally, the Superintendency clarified, in Official Letter 220-091819 of July 11, 2021, that “the obligated subjects will determine the mechanisms that will allow them to evaluate, monitor and control the risks and, in turn, will establish the relevant sanctions for non-compliance with the system in accordance with its organizational structure, sanctions that must cover both employees, administrators, associates or third parties. (…) Therefore, it is up to each obligated company to determine, in each particular case and in accordance with the characteristics of its organization, the sanctions applicable to associates who fail to comply with SAGRILAFT.”
Colombian companies that have been implementing these programs since 2016 have focused on following the regulations’ instructions to the letter, including simple sanctioning regimes in their compliance systems. In practice, the most common scheme consists of classifying non-compliance with the duties and obligations derived from compliance policies and procedures as disciplinary offenses, and the compliance area, in these cases, usually plays the role of investigator who presents the case. before the disciplinary authority. The consequences for non-compliance have then been limited, with good judgment, to what is permitted by labor regulations, from reprimands to suspensions from their duties without remuneration, and in serious cases even the termination of the employment contract with just cause, after developing a disciplinary due process. It is worth remembering that, according to the substantive labor code, disciplinary sanctions with pecuniary consequences are completely prohibited, except in cases in which the worker has unjustified delays or absences, in which case the hours or days not worked can be deducted from the salary. Such regulation completely prevents the imposition of economic sanctions for lack of compliance.
On the other hand, incentive or compensation schemes to encourage compliance seem to still be a field insufficiently explored by companies, which is a real shame because, although there are currently insufficient parameters to measure the effectiveness of adopting compensation schemes in compliance programs, the truth is that in other areas of the development of corporate culture, incentives have proven to be useful tools to promote cultural changes and the internalization of corporate values, so, from the perspective of corporate compliance, it would be a practical recommended to help translate paper compliance programs into the reality of companies.
Contrary to the situation in the United States, Colombian regulations do not require or suggest specific models of incentives and sanctions as a mandatory requirement in compliance programs. The assessment of these programs within the framework of the administrative sanctioning procedure lacks detailed government guidelines, and there is nothing to indicate that the compensation and sanction schemes are rigorously evaluated as a component of effectiveness to mitigate the administrative responsibility of legal entities in the framework of the sanctioning procedures initiated under the Anti-Corruption Statute (Law 1474 of 2011) and the Transnational Bribery Law (Law 1778 of 2016). However, Colombian regulation tends to imitate North American trends, which have become a true compliance standard for Latin America, therefore, it makes sense that we begin to take the tools seriously to make our compliance programs true instruments. for the prevention and management of risks in companies.
BONUS: Some ideas on incentive and sanction schemes to reinforce the compliance culture in your company:
Incentives:
• Public recognition: Reward ethical and transparent employees in meetings or internal communications.
• Ethical bonus program: Offer financial bonuses to employees who demonstrate outstanding ethical behavior.
• Ongoing training: Provide ethics and compliance training opportunities, with incentives for completing courses and certifications.
• Extra days off: Provide extra days off as a reward for maintaining high ethical and compliance standards.
• Participation in decision-making: Invite ethical employees to participate in key decision-making processes to foster their commitment.
Sanctions:
• Temporary suspension: Impose temporary suspensions on those who violate ethics or compliance policies.
• Affected performance review: Link performance evaluation to ethical conduct, so that those who do not comply face consequences in their reviews.
• Phased removal process: Implement a system of progressive warnings before termination for cases of unacceptable ethical conduct.
• Prohibition of promotions: Prevent promotions and promotions for those who have violated ethical policies until they demonstrate a change in their behavior.
It is important to adapt these measures according to the culture and specific needs of the company, promoting a balanced approach between incentives and sanctions to achieve effective results.
By Nicolás Castro Márquez, corporate criminal lawyer, Posse Herrera Ruiz.
by Juan Manuel González | Mar 13, 2024 | Noticias-en, Opinions
Last January, Fundación Generación Empresarial presented the results of a study that has been carried out annually for 18 years. A total of 165 public and private institutions, for-profit and non-profit, large and small, were encouraged to be part of the Recognition of Commitment to Integrity, a process that allows them to know how they live the values, and which culminated with a ceremony that He distinguished those that stood out the most. This is the largest number that has participated in this activity that includes the application of the Barometer of Values and Organizational Integrity and the delivery of documentation that certifies good practices. More than 45 thousand people from all walks of life responded to this survey about the advancement of the “culture of integrity” in their workplace, communicating with actions and not words, that integrity is a central value in their work, and that they are making genuine efforts to improve themselves.
On average, people who responded to the Barometer expressed themselves positively about the place where they work. They said that there are established values and they are promoted (87%), that they are actively disseminated (82%) and that managers act in accordance with them by setting an example (72%). They also expressed concern that their organization could become involved in corruption scandals (one in three people). These figures are reason to be optimistic. But the situation in the country makes us be cautious because, in the circumstances we live in today, it is not integrity that monopolizes the headlines, but corruption.
The Barometer measures perceptions and the Accreditation Guidelines record the institutionalization of practices of the Ethics and Compliance Program. Today we talk about “compliance” to refer to the legal requirements that must be met, but if this becomes an issue that is entrusted only to lawyers, it does not help much. This way, behaviors are not changed much.
The focus should be on corporate governance and culture, that is, the way things are expected to be done, how the organization is run and decisions are made at the top level. This implies that “the tone at the top”, which refers to the actions promoted by managers, must be effective in strongly communicating the ethical implications of behavior at all levels of the organization. Your message should be that you have to strive to “do things right,” and that you trust people’s ability to self-regulate their behavior. The best way to make this message credible is through ethical leadership that “speaks from action” and “zero tolerance” for abuse and corruption.
Not only people with values-based behavior win. Whoever acts accordingly, whatever their role, will feel the satisfaction of having done their best and this will have a positive impact on the work environment. The same goes for organizations. Their effort to get things done supports the integrity of the entire country. Hence the importance of all organizations “dare to be better.” Measuring yourself is the first step of change, as it shows the intention to renew yourself. But we must move beyond measurement… it is time to act.
By Fernanda Hurtado, General Manager FGE and Compliance Latam Collaborator.
by Juan Manuel González | Mar 11, 2024 | Noticias-en, Opinions
Strategic litigation, also called impact litigation, is a tool whose use is increasingly frequent and that helps achieve gender equity. It is important to understand what it is and what its scope is, to encourage its use in the future and continue developing advances in this matter.
For some time now, but particularly in recent decades, society has begun to care about achieving gender equality. This concern has been presented to politicians, leaders and governments in many ways, but particularly through demonstrations. It is true that civil society has been one of the great drivers of this impulse, but the work of organizations that have equity as an end in themselves must also be recognized.
These organizations have been fundamental in promoting public policies so that governments establish the foundations to eliminate inequality and provide equal opportunities to all.
However, it is common for governments, and particularly legislative powers, to not fully understand the requests that society makes on these issues. This can often happen due to machismo or even lack of vision to understand that a problem exists. This is not surprising, given that congresses are representatives of societies; These same societies suffer from the same problems, and that, in the best of cases, are just beginning their deconstruction processes.
That is why public policies that do not comply with international equity standards have been legally controversial, either because their purpose is not well understood or because the way these policies are applied does not contribute to achieving the objective of equity.
This is where strategic litigation comes in as a way that opens avenues of protection through the use of judicial tools. Strategic litigation represents the person with a particular situation and common requests from minority groups, which perfectly exemplify problems in laws and policies that could not otherwise be understood.
To demonstrate that a law is incorrect, develop a trial and challenge the norm that was applied to a specific case with specific circumstances and people, it will always be much easier than warning of its unconstitutionality in an abstract way.
In Mexico, and in the rest of the world, important precedents have been established in this matter, such as, for example, in criminal matters, the right for a woman not to be punished for performing an abortion.
Also, it was through a series of trials that differences between men and women in labor matters were reduced. This included cases where it was prohibited to fire pregnant women, questioning the policy that only provided daycare services to working women, but not to working men; endorsing the idea that, if a man worked, he did not need that benefit because surely his wife would not work and take care of the children.
In addition, the possibility of recognizing home work with the same rights as any other was opened. This allowed the establishment of pensions for women who remained in charge of the home while their husband worked, and also generated a social security system for domestic workers that allows them to enjoy benefits on a par with any job.
In administrative matters, it is important to highlight the interpretations of the scope of reparation for victims by state bodies, including the acceptance of responsibility, which has often led directly to modifying public policies and discriminatory legislation.
These matters have not only provided benefits to the people who promote such lawsuits, but they also generate precedents that can be applied by lower or local courts in similar matters, and in some cases they have even managed to boost the interest in carrying out legislative reforms and even constitutional ones to establish rights and their scope and the way in which governments should respond to the problems that women face.
These changes are fundamental, and although they are not rapid, they end up influencing society and individuals in the long term, thus causing societies to modify their rules in favor of equity.
Within the framework of Women’s Day, it is necessary to highlight and remember these types of tools, as well as celebrate the lawyers who, generally on a pro bono basis , seek the creation of equal opportunities and the end of gender-based violence. through the defense of affected people. The same with the organizations that give meaning to law and public policies every day so that they have better access to justice.
Last but not least, it is necessary to recognize the judges who, with progressive vision and often with considerable courage, provide the cases with the emblematic sentences that are celebrated on days like today.
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By, Diana Rangel León, Bashan, Ringe and Correa Counselor.
by Juan Manuel González | Mar 8, 2024 | Noticias-en, Opinions
“As women, we must stand up for ourselves. We must defend each other. We must defend justice for all.” –Michelle Obama
Understanding that sisterhood is the relationship of solidarity between women, especially in the fight for their empowerment, from a practical and application point of view, it is difficult to determine which are the most effective practices and with the greatest impact that we can implement to achieve support. to other women in this fight for empowerment.
For this reason, and based on my personal experiences and that of some other legal professionals, below are some recommended practices to encourage the practice of sisterhood effectively among legal professionals.
1. Don’t judge and honor other women’s stories.
On many occasions we tend to judge and/or minimize the experiences of other women, and each woman has a story that has led her to be what she is, it is an accumulation of experiences that has resulted in the forging of character. By honoring her stories, we learn from experiences that enrich our own perspective; while by not judging we create an environment of trust, in which the support network will be genuine and free of prejudice. Even though we are all women, and we have all been discriminated against; We have not been in the same way since the intersectionality that certain attributes give us such as privilege, absence of it, social class, sexual preference, ethnicity, age, among others, greatly differentiate the experiences between one and the other.
2. Avoid toxic criticism of another woman.
This does not mean always agreeing with another woman, however, we must avoid falling into toxic criticism that is versed in gender prejudices. Carrying out objective and constructive criticism, which provides learning and improvements to another woman, is very different; to fall into the use of appellations to the personality of this one of hers. And, while it is true that women are not perfect, it is also true that we are judged by a much more demanding standard than men. A direct woman can be classified as “bossy”, while a direct man is classified as a “leader”. Using adjectives like “crazy”, “bitch”, “angry” or even referring to a woman’s menstrual cycle, physique or sexual life adds toxicity to any criticism.
3. Stop gossiping about another woman.
Being a professional woman is very difficult, and even though the tendency is not to care about “what people will say”, in the working world it is very common to hear gossip about women; about their love life or choice of partner, their conditions as a mother, or if they are conflictive or problematic people. By sharing and/or spreading gossip, we discredit women’s professional achievements; We question progress very harshly, we give moral weight to attitudes that should not be anyone’s business. If you hear gossip about another woman (even if it is true), it is best to avoid promoting it and put an end to it.
4. Adopt a mentee.
Starting a professional life and cultivating it is very complicated, no matter what phase and/or stage of your professional life you are in, your experiences can serve as a guide for younger women. Helping future generations to solve problems and have greater professional visibility will contribute to reducing the gender gap. Any advice, teaching and/or support for another woman will help her grow professionally and be able to clearly outline a career plan that not only projects work achievements, but also achieves a balance between personal and professional life that also promotes her comprehensive development. as a woman.
5. Educate yourself, learn and unlearn.
Even though we are aware of the historical reality of discrimination against women due to gender, it is important to recognize that we do not have the absolute truth; in many cases intersectionality and privilege cloud our judgment, adding to the fact that it updates reality. and it exceeds our basic knowledge, which is why it is the responsibility of each and every one of us to continually educate ourselves, learn and update ourselves on gender issues, and unlearn behaviors imposed by the patriarchal society in which we have been educated.
6. Share and celebrate the achievements of other women.
When we recognize, share and celebrate the achievements of other women, we are celebrating ourselves. We are recognizing and celebrating the progress in the professional world that we are making as a gender. Avoiding toxic competition and envy is vital and necessary, with the understanding that the triumph of one does not mean the failure of the other. In order to achieve a gender-equal society, break cement and glass ceilings, eliminate the wage gap, among others, it is necessary to have representation in decision-making bodies. The representation of women is key to continuing their professional development; celebrating achievements is the first step towards an equal society. The triumph of one must be the triumph of all.
7. Zero tolerance for sexual harassment and harassment.
Justifying sexual harassment towards another woman is simply unacceptable. One of the main obstacles at work that we have as a gender is sexual harassment and harassment. By believing the victim, not questioning them, and supporting the creation of zero-tolerance policies and processes for sexual harassment and harassment in the workplace, we are creating a safe work environment for everyone.
8. Listen and be empathetic with other women.
As human beings we react differently to the various events in our lives. If a woman wants your advice, she wants your support or she just wants to vent to you, listen to her and be empathetic. Empathy is a quality that allows positive coexistence, improves social skills, develops relationships with other people and generates an environment of trust and complicity that will help us better understand other women. Listening to another woman allows you to avoid frustrations and give a new perspective to the resolution of both work and personal conflicts.
9. Give opportunities to other women.
Our duty as women is to promote the development of equal opportunities for other women. This doesn’t just mean hiring women, and stopping working with men; but rather opening the door for women to develop in areas that make them more competitive in the work environment. To not only look for capable women, but to trust, collaborate and promote positive actions through which gender equality is achieved.
10. Promote feminism, sisterhood and an egalitarian environment.
Prepare articles, columns, actively participate in the creation of diversity and inclusion policies, go to marches, share content on social networks, and in general, promote feminism and sisterhood among women, stop and raise our voices against misogynistic jokes, demand Due respect for oneself and others are first steps that will result in having more and better tools that are necessary for the creation of an egalitarian environment.
By Mónica Paulina Mora Ávila, associate Basham, Ringe y Correa.
by Juan Manuel González | Mar 5, 2024 | Noticias-en
The President of the Republic issued Executive Decree No. 754, published on June 2, 2023 (hereinafter “ Decree ”). The Decree reformed the Regulations of the Organic Code of the Environment. One of the main reforms that the Decree implemented was the Citizen Participation Process for Environmental Consultation in the environmental regularization process.
On June 13, 2023, certain indigenous groups presented a public action of unconstitutionality, due to the form and substance of the Decree, indicating that: (i) a Law and not an Executive Decree is required to regulate these aspects; (ii) failure to carry out the pre-legislative consultation; (iii) the prior consultation is confused with the environmental consultation, requesting the suspension of the Decree while the case is resolved.
On July 31, 2023, the Constitutional Court heard the request within case 51-23-IN, in which it decided:
• Admit the public action of unconstitutionality to processing, without implying prejudgment.
• Accept the request for provisional suspension of the entire Decree while the Constitutional Court analyzes and resolves the public action of unconstitutionality.
What are the next steps to follow in response to the claim of unconstitutionality of the Decree?
The Presidency, the Ministry of the Environment, Water and Ecological Transition (hereinafter “ MAATE ”), and the State Attorney General’s Office may challenge or defend its constitutionality within 15 days. Likewise, the Presidency has 15 days to send to the Constitutional Court the support on which the Decree was based.
Companies that have already initiated the environmental consultation process under the Decree could present amicus curiae, to report their arguments to the Court.
Deadlines that the Constitutional Court has:
At the moment there is no specific term for the Constitutional Court to rule on the merits of the public action of unconstitutionality. In the meantime, the Decree will continue to be suspended.
Relevant information:
The MAATE indicated that more than 150 projects have been paused due to the lack of implementation of the environmental consultation.
Possible scenarios: Once the Constitutional Court analyzes the substance of the public action of unconstitutionality, there are 3 possible scenarios:
1. Scenario #1: The Decree is declared unconstitutional in its entirety.
| Effects |
Legal path to follow |
| Until the National Assembly issues the new law, the MAATE will not be able to continue with the environmental regularization processes. The Court must rule on the regularization processes initiated before the declaration of unconstitutionality. |
The National Assembly should issue an organic law that regulates the right to prior consultation and the right to environmental consultation.
If the Court so determines, the pre-legislative consultation must be carried out previously.
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2. Scenario #2: The Decree is declared partially unconstitutional.
| Effects |
Legal path to follow |
| The articles that the Constitutional Court determines are unconstitutional would be eliminated from the Decree, and the rest would remain in force. The Court must rule on the regularization processes initiated before the declaration of unconstitutionality.
Until the National Assembly issues the new law, MAATE will not be able to continue with the environmental licensing processes.
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The reasoning of the Constitutional Court must be followed, which could include the National Assembly issuing an organic law that regulates those issues that are declared unconstitutional. In turn, a pre-legislative consultation be carried out.
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3. Scenario #3: the content of the Decree is declared to be constitutional.
| Effects |
| The provisional suspension of the entire Decree is lifted and the environmental consultation processes are resumed. The conditional constitutionality of the Decree could also be declared, and it must be applied in the manner indicated by the Constitutional Court. |
For more information contact:
Maria Rosa Fabara | Partner Bustamante Fabara | mrfabara@bustamantefabara.com