Recent DOJ Guidance is Employers’ Compliance Program Roadmap

In April 2019, the DOJ’s Criminal Division released its updated guidance document, Evaluation of Corporate Compliance Programs, intended to assist prosecutors in exercising their discretion to investigate, bring charges or negotiate plea deals or other agreements with employers. The updated guidance supplements the DOJ’s original guidance issued in February 2017 and does not affect the DOJ’s standards or policies but sets forth the DOJ’s current approach in evaluating corporate compliance programs. The information contained in the updated guidance should be used as a roadmap for companies to better develop their compliance programs to withstand the DOJ’s scrutiny.

When evaluating whether to investigate, bring corporate criminal charges or negotiate pleas or corporate agreements, the DOJ considers specific factors, including whether a corporation’s compliance program was “adequate and effective” at the time of the criminal offense and at time of the charging decision and, if it was inadequate or ineffective, the corporation’s remedial efforts to implement or improve a corporate compliance program to make it adequate and effective.[i] The updated guidance provides examples and considerations for prosecutors in determining whether a compliance program is adequate and effective.