Sure, I know you probably want to read about the NLRB’s decision this week questioning the legality of confidentiality and non-disparagement clauses in severance agreements for employees who aren’t supervisors. We’ll have more on that soon. (For now, Jon Hyman’s summary is a worthy substitute.)
But in the meantime, I wanted to highlight something else that you’re not likely to see headlines about but may be just as important when the time comes.
This week, the U.S. Attorney for Connecticut, Vanessa Avery, announced a new Voluntary Self-Disclosure Policy for employers. According to the office:
The policy, which is effective immediately, details the circumstances under which a company will be considered to have made a voluntary self-disclosure (VSD) of misconduct to a United States Attorney’s Office (USAO), and provides transparency and predictability to companies and the defense bar concerning the concrete benefits and potential outcomes in cases where companies voluntarily self-disclose misconduct, fully cooperate and timely and appropriately remediate.
A voluntary self-disclosure probably requires a bit more of an explanation. Let’s suppose that you (the employer) become aware of a crime or misconduct by an employee or a group of employees before that misconduct is publicly reported or otherwise known to the DOJ. You should probably first call an attorney. (My colleagues Morgan Rueckert and Jim Bergenn are among the best around at this.)
But, in consultation with that attorney, you may then decide to disclose all of the relevant facts in a timely fashion prior to an imminent threat of disclosure or government investigation.
This type of scenario is defined by the government as a VSD.
Under this new policy, a company that makes the VSD and otherwise meets the other requirements of the policy and fully cooperates with the government (including paying things like restitution resulting from the misconduct) may avoid the federal Justice officials seeking a guilty plea and may be provided with a reduced or no criminal penalty.
This could be a significant benefit to employers who have a strong compliance program but fear that self-disclosure would only result in more fines. Under this policy, an employers with an effective compliance program, may be able to avoid additional criminal sanctions or an independent compliance monitor too.
Of course, this summary just touches the surface here and no employer should be disclosing this type of information to the government without strong legal counsel. But in the instance that the employer discovers wrongdoing on its own, the policy does provide employers with some choices to make.
Again, I cannot highlight enough the importance of seeking outside counsel early in situations like this to ensure that the attorney client privilege is in play and that employers can make good, thoughtful decisions. A VSD is a complex legal tool and outside counsel can help guide employers through the process.