As Director of Compliance for a small collections law firm, our firm’s President allows me much leeway in policy drafting. As always, it is imperative to obtain final approval from executive management on all policies and procedures. Why? Well, there is the obvious answer that “executive management runs the show,” but more importantly, I know if I don’t have the President’s buy-in, I will lose the ability to create and strengthen my firm’s culture of compliance.
Culture of compliance? Maybe some of you have heard this phrase and others haven’t. For me, this phrase is the foundation of my job. Is my goal to have the most compliant collection law firm possible? Of course it is, but that is not necessarily a quantifiable goal. You might ask how then, could I attempt to quantify “culture.” You got me! Culture is not quantifiable (unless you’re playing a game like Sid Meier’s Civilization). I see a firm with a culture of compliance as one where all staff members believe that compliance is integral to their everyday, sometimes even their every-minute job functions; they know compliance is something not meant to hinder but to help.
So, how is a culture of compliance created? My firm was serious about compliance before having a designated Director of Compliance, but the firm’s culture needed strengthening. I started with reviewing all policies, revising some, and in many cases, creating new ones. While the President had the ultimate say as to publishing a particular policy, before presenting it to him, I proactively sought out the advice of the firm’s other attorneys and managers.
Were any of the reviewers going to drastically change the underlying core of a policy—for example, was anyone going to say we should pursue debts included in bankruptcies? No, but I wanted to hear how both (a) the policy itself and (b) how it was written would affect their department and tasks. By allowing the managers and attorneys to voice their opinions during the initial drafting process, I received their buy-in and trust. They learned I was not going to draft an inflexible and unreasonable policy that would be forced on their departments. The firm’s management would support the policy from the beginning, and thus, support its implementation. They would be able to talk to their staff about both the necessity and practical effect of the policy. Likewise, the staff know their manager was involved and looking out for the department’s best interest. This led to an increased likelihood that the policy would be followed. This process might take longer, but by bringing the departments along with each step, the firm’s culture of compliance was strengthened.
Re-drafting our firm’s “Collector Call Monitoring and Incentive” and “Bonus Program” policies offers one of the best examples of the above process. Originally, the policies were one combined policy. After discussions with the collection managers, which included considering the CFPB’s concerns about incentive-based policies, it was decided to create two separate policies.
The newly drafted “Collector Call Monitoring and Incentive” policy:
- covers the number of calls monitored per collector each month,
- delineates what is considered a failed call,
- states the monthly average grade a collector must receive to be 100 percent “bonus eligible, and
- says that “[a]ll bonuses are calculated based on the . . .Collector Bonus Program Policy.”
The revised “Collector Bonus Program” policy added that, apart and separate from failed calls, any compliance violation may result in either a reduction or elimination of a collector’s bonus.
From my perspective as Director of Compliance, it was important that compliance violations result in a tangible punishment; I wanted to illustrate to staff, clients and regulatory bodies that compliance is a priority. The Collection Managers agreed with that principle, but were concerned about a compliance error resulting in a disproportionate punishment. It was a valid point. Failing to give a “call monitoring disclosure” was certainly different than failing to give the Mini-Miranda on a telephone call.
I revised that section of the policy, considering proportionality of punishment and delineating levels of compliance violations. Eventually, the Collection Managers and I finalized four distinct levels of violations, as well as a “statute of limitations” for certain violations. For example, our firm’s “First Degree Violation” is any “FDCPA or other federal or state law compliance violation” which results in “immediate forfeiture of a bonus and/or further disciplinary action, up to and including termination.” While a “Third Degree Violation” (a violation of a client policy), can only warrant a “partial forfeiture” and has a “statute of limitations” of six months. Does this mean collectors are not punished for violating a client policy seven months ago, even though the error was just found? No, but there will be no forfeiture of bonus.
When the policies were rolled out, the collectors were pleased by the clear definitions, not only of what was considered failing and passing grades, but the severity of the violations and corresponding punishments. While the collectors each know that compliance is expected 100 percent of the time, they also know their Director of Compliance understands that everybody is human and might forget to properly code a file on a bad day. The Collection Department completely bought-in to the policy, which resulted in a deepening of our compliance culture. As an added bonus (pun intended), collectors know that neither their managers nor the Director of Compliance is “out to get them” with the compliance policies.
As each New Year begins, I review our firm’s “Year in Compliance” and create new compliance goals; but those goals are always set after asking the question, “Will this strengthen our compliance culture?” I encourage you, no matter what your role is in your firm, to consider how you can create or strengthen your firm’s culture of compliance in 2015.
(Disclaimer: These comments are not meant to be legal advice. They are my opinions. Furthermore, while I am a lawyer, I am not your lawyer. As always, you should seek your own legal counsel or do your own research.)
By Brit J. Suttell, Esquire, Director of Compliance
Ms. Suttell is Director of Compliance at Burton Neil & Associates, P.C. She is an ACA International certified Credit & Collection Compliance Officer. She graduated from Mount Holyoke College in 2003 and received her JD from Seattle University School of Law. She is licensed in Pennsylvania, where she has been practicing for over 8 years. When not in the office, she enjoys playing tabletop board games and often enforces the rules on her friends. She can be reached at:
Burton Neil & Associates, P.C.
1060 Andrew Drive, Suite 170
West Chester, PA 19380
610.696.2120 ext. 260