Real-time Changes Standards - NAVEX Global −Defining who can report −Definition of internal reporting (i.e. should managers take reports?) −Monetary incentives −Limits on topics

Copyright © 2019 NAVEX Global, Inc. All Rights Reserved. | Page 0

Real-time Changes in Whistleblowing

Standards

Carrie Penman and Robert Smith

Copyright © 2019 NAVEX Global, Inc. All Rights Reserved. | Page 1www.navexglobal.com

Agenda

• Drivers of the Changing

“Whistleblower” Landscape

• Converging Elements

• Recent Legislative and Guidance

Activity

• Pros, Cons and Variations on the

Themes

• Serco Updates


Drivers of the Changing Legislative Landscape


Everyone is getting into the “act”!

Drivers of the “Whistleblower” Landscape

• Lack of trust in organizations

• Need for more transparency

• Desire to codify policy

• Desire for consistent policies,

processes and implementation

including in investigations,

closeout and reporting

• Including reporters beyond

employees


Converging Elements


Converging Elements

• Expanding protection of individuals from

retaliation

• Protecting the identify of the reporter

• Defining who can raise issues and to

whom/where

• Defining and protecting external reporting

– including reporting to the media

• Focus on strong policies, processes and

clearly defined responsibilities


Recent Legislative and Guidance Activity


EU Whistleblower Directive

• A three-tier reporting system that ensures confidential reporting channels for:

− Internal reporting within an organization

− External reporting to authorities

− Reporting to the public or media

• Includes a ban on all forms of retaliation AND shifts the burden of proof to the organization, which must prove that it is not acting in a retaliatory way against the whistleblower

• Organizations will be required to establish an internal procedure to handle whistleblowers’ reports – requires follow-up to the reporter within 3 months

• Directive specifically extends protection to those who report internally

• Member countries determine what anonymous reporting is acceptable

• GDPR still applies


Australia – Changes to Corporations Act

• Who can submit a report: Expands categories of who can make a disclosure to include

former officers, employees, contractors and suppliers, as well as family members

• Where reports can be submitted: Expands range of persons or entities to which a

whistleblower may make a disclosure and still be protected under the new laws NOTE:

eligible recipients removes junior managers and HR as eligible recipients

• Identity protection: Enhanced requirements to protect a whistleblower’s identity during

and following a disclosure

• Increased legal protection: Increase in legal protections for whistleblowers, including

improved access to compensation for those who suffer reprisal or retaliation following a

disclosure


Australia – Changes to Corporations Act (cont.)

• Anonymous reporting: For the first time in Australia, whistleblowers can submit reports

without the need to declare their identity, or prove the disclosure is being made in ‘good

faith’. The current 'good faith' test is replaced with a requirement that the whistleblower

has objectively reasonable grounds to suspect wrongdoing

• Penalties:

− Significant penalties ranging up to $10.5 million for breaches of the new whistleblower protections

− increasing penalties for individuals (up to $200,000) and corporations (up to $1 million respectively) for disclosing a whistleblower’s identity or causing detriment to a whistleblower

− From January 1, 2020 it will be an offense to not have a compliant whistleblowing policy in place, which will also result in a fine


In development and expected to be issued in 2021

ISO 37002

• ISO 37002 will provide guidelines for organizations with a whistleblowing program in

place to help them ensure it’s effective based upon three principles:

− Trust

− Impartiality

− Protection

• Intended to guide organizations in managing their whistleblowing policy and program in

the following areas:

− How concerns of wrongdoing are identified and reported

− How concerns of wrongdoing are assessed

− How concerns of wrongdoing are addressed

− How whistleblowing cases are closed


2019 DOJ Guidance

• Specific focus on:

− Effectiveness of the Reporting Mechanism

− Properly Scoped Investigations by Qualified Personnel

− Investigation Response

− Resources and Tracking of Results

Prosecutors should assess:

• The pro-active measures to create a workplace atmosphere without fear of retaliation,

appropriate processes for the submission of complaints, and processes to protect

whistleblowers

• Processes for handling investigations including the routing to proper personnel, timely

completion of thorough investigations, and appropriate follow-up and discipline


Pros, Cons and Variations on the Themes


Pros, Cons and Variations on the Themes

• Pros

− Focus on identity and retaliation protection – Are we ready for this?

• Cons

− Approaching the level of being too prescriptive

− Media reporting protections outside the US

− Many outside the US are still focused on only non-grievance issues (what about sexual harassment or discrimination?)

• Variations on the Themes

− Defining who can report

− Definition of internal reporting (i.e. should managers take reports?)

− Monetary incentives

− Limits on topics that can be reported (outside the US)

− Permitted anonymous reporting varies

− Civil vs. criminal penalties


Best Practices in KPIs

Tracking and Reporting Against the New Guidance and Standards


Serco Updates

• Changes to the Speak Up Policy as a result of recent activity

• Dashboard project


Questions

Documents

Real-time Changes Standards - NAVEX Global −Defining who can report −Definition of internal reporting (i.e. should managers take reports?) −Monetary incentives −Limits on topics