Uncomfortable Questions: HR, Anti-Bribery Compliance, and International Hires and Promotions
One of your top managers is pushing to hire or promote a particular candidate for a position in a country in Africa. He tells you, “This guy is really great. He knows how to do business in this country and has lots of connections. He will be a real asset for our business there. We need to get him on board before someone else hires him.” If you have been a human resources manager or employment lawyer for a company with international operations for any length of time, you may have heard such pleas before. You probably also know that these types of hiring decisions can get
companies into a whole lot of trouble.
The newly published ISO Standard No. 37001, the first international
standard for anti-bribery management systems, contains new due diligence
standards that employers should seriously consider using when vetting employees
for international positons. The first step of any process, which the ISO
Standard endorses, is to evaluate the position itself: Does the proposed
position involve work in countries posing a moderate or high degree of
corruption risk, and is it the type of position where the employee could be
potentially corrupted? The Transparency International Corruption Perceptions
Index, available at http://www.transparency.org/cpi/, might be helpful in making these determinations.
Once the position has been identified as posing some risk — even a low risk — HR
should thoroughly vet the candidate. This can often result in uncomfortable
conversations with the manager who is pushing to expedite hiring. Can that
manager demonstrate that his preferred candidate really has the requisite
qualifications and experience for the position, or is the employee being
recommended because he was previously employed as — or has a family or
other close relationship with — a government official, including an employee of a state-owned company
with which the company conducts business? While helpful, the manager’s answers
to these questions should be corroborated. The company needs to independently investigate
whether there are any red flags in the candidate’s background that would make
the candidate more likely to engage in corrupt conduct.
Of course, any vetting of any candidate must be done carefully. Before conducting
any inquiry into the candidate’s background, employers must ensure that they
are complying with any U.S. and foreign laws that limit or regulate background checks.
When red flags are identified in investigation, including prior employment as a
government official or a family or other close relationship with a government
official, HR should have a conversation — not
an email exchange — with the company’s compliance or legal groups, who can then
undertake an appropriate investigation and risk assessment, possibly including
the use of outside counsel. This risk assessment and due diligence should be
documented and maintained with the company’s compliance records. Assessing such
risks and properly evaluating and documenting the resulting inquiry are
important steps to avoid anti-corruption risk, and to give the company a
defense should a corruption issue ever arise.