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The DOJ’s Focus on Culture, Compensation, and Communication

At first blush, the “tough on crime” speech[1] given last month by U.S. Department of Justice (“DOJ”) Deputy Attorney General Lisa Monaco to an audience at NYU School of Law might not seem remarkable to Human Resources leaders and their advisors. However, while outlining policies regarding the DOJ’s enforcement of corporate criminal acts, Deputy Monaco specifically addressed these items of direct relevance to Human Resources professionals: compensation plans, corporate culture and employees’ use of personal electronic devices. This speech and the accompanying memo[2] may have important implications for how employers structure certain internal policies and address allegations of wrongdoing by their employees.


The DOJ 2022 Memo is technically an internal document from the Deputy Attorney General addressed to other DOJ personnel. However, memos such as these are publicly released materials and are used as guidance documents by prosecutors and corporations alike to inform the course and direction of government investigations of employer criminal conduct that is allegedly violative of federal legislation. Recently, the import of such memos was expressly bolstered by the government. First, in January 2021, President Biden revoked[3] an Executive Order issued by his predecessor stating that memos such as these should be “non-binding in both law and in practice.”[4] Then, in July 2021, Attorney General Merrick Garland released his own memo[5] specifically emphasizing the significance of such guidance documents and rescinding a contrary memo issued during the prior administration.

Deputy Monaco stated that her agency “needs to do more and move faster” following what she described as “an overall decline in corporate criminal prosecutions over the last decade.”[6] Notably, the DOJ has asked Congress for $250 million in additional funding to help achieve the DOJ’s increased enforcement goals.[7] The DOJ’s stance on this topic was brought to light in a memo released by Deputy Monaco in October 2021[8] that was then supplemented with the issuance of the DOJ 2022 Memo.

Culture, Compensation and Communication

The DOJ 2022 Speech made it clear that the DOJ is currently focused on corporate culture, and stated that “with a combination of carrots and sticks – with a mix of incentives and deterrence – we’re giving general counsels and chief compliance officers the tools they need to make a business case for responsible corporate behavior. In short, we’re empowering companies to do the right thing – and empowering our prosecutors to hold accountable those who don’t.”[9]

Part of the DOJ’s desired culture changes relates to the structure of employer compensation packages. Employer compensation plans have long been structured to incentivize certain behavior through bonuses or other compensation, and some of those plans have contained targets focused on achieving specific goals of the Human Resources team, such as hitting training milestones or enhancing diversity, equity, and inclusion efforts and their impact. The DOJ 2022 Memo announced that the DOJ is recommending the inclusion of financial penalties in employer compensation plans for those employees found to have engaged in wrongdoing. This use of this type of “stick” in addition to the “carrots” traditionally offered in compensation plans is new, and may present implementation challenges to employers. Deputy Monaco explained that, “[g]oing forward, when prosecutors evaluate the strength of a company’s compliance program, they will consider whether its compensation systems reward compliance and impose financial sanctions on employees, executives, or directors whose direct or supervisory actions or omissions contributed to criminal conduct. They will evaluate what companies say and what they do, including whether, after learning of misconduct, a company actually claws back compensation or otherwise imposes financial penalties.”[10]

The DOJ also focused on employee communications, setting the expectation in the DOJ 2022 Memo that employers not only have policies authorizing them to collect data and communications from employees’ business devices, but that they also have such rights with respect to employees’ personal devices and third-party messaging applications (if they are used for work). In addition, the DOJ expects employers to have the technical capability to access these personal devices and third-party messaging applications, even those that use ephemeral or disappearing messages.

The last point for Human Resources teams to know is that the DOJ is providing incentives for employers to self-disclose bad acts in a timely manner and is focused on the requirement of employers to evaluate the entirety of an organization’s alleged bad acts, stating that, “it is imperative that Department prosecutors gain access to all relevant, nonprivileged facts about individual misconduct swiftly and without delay.”[11] This may have implications for organizations that historically have handled allegations of sexual harassment with an in-depth investigation, followed by the use of a non-disclosure agreement. Questions that may arise for such organizations in the context of this new guidance include: At what point in the investigatory process might it no longer be considered “timely” to make a disclosure to the DOJ when that investigation is extensive and time-consuming? How harshly will the DOJ deal with organizations who elect to use non-disclosure agreements in such matters?

Key Takeaways

These recent announcements emphasize the importance of information-sharing across organizations so evaluations can be made at the proper management level regarding potential cooperation with and disclosure to the DOJ. Another key takeaway for Human Resources teams is the importance of solid internal controls that lead to the swift identification of potential issues, as well as robust and timely investigations of any conduct that potentially warrants disclosure and action.

If you aren’t sure of the strength of your organization’s existing controls or if you are concerned about potential gaps in this area, now is the time to take an inward look. A climate assessment can provide a comprehensive review of policies, practices, procedures and strategies, with the objective of identifying opportunities for improvement and establishing best and compliant practices. If you do not have an employee hotline or other formal program employees can readily use to lodge complaints or express concerns about workplace behavior, now may be the time to consider one. If your management team is not focused on identifying and raising potential employee issues to the top, you may want to consider a refresher training course.

Stay tuned, as the DOJ has already told us that more is to come on these topics. EPS will continue to keep you updated.

[1] Speech, U.S. Department of Justice, Deputy Attorney General Lisa O. Monaco Delivers Remarks on Corporate Criminal Enforcement, (September 15, 2022, (hereinafter “DOJ 2022 Speech”).

[2] Memorandum, U.S. Department of Justice, “Further Revisions to Corporate Criminal Enforcement Policies Following Discussions with Corporate Crime Advisory Group,” (September 15, 2022), (hereinafter “DOJ 2022 Memo”).

[3] Executive Order No. 13992, “Revocation of Certain Executive Orders regarding Federal Regulation”, (January 20, 2021),

[4] Executive Order No. 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents”, (October 9, 2019),

[5] Memorandum, U.S. Department of Justice, “Issuance and Use of Guidance Documents by the Department of Justice”, (July 1, 2021),, (“a guidance document may be entitled to deference or otherwise carry persuasive weight with respect to the meaning of the applicable legal requirements”).

[6] DOJ 2022 Speech.

[7] Id.

[8] Memorandum, U.S. Department of Justice, “Corporate Crime Advisory Group and Initial Revisions to Corporate Criminal Enforcement Policies,” (October 28, 2021),

[9] DOJ 2022 Speech.

[10] Id.

[11] DOJ 2022 Memo.