Ethical and legal behavior can often be confused—partially because they can often overlap. However, legal behavior and ethical behavior are different. For instance, it is not a legal issue to debate if you should buy a boat or donate to a charity, but it could be an ethical issue.
Both legal and ethical have significant consequences for business: legal misconduct can result in fines and (depending on the severity of the misconduct) incarceration of perpetrators, and ethical misconduct can result in a loss of trust from customers and partners. In this section you’ll get an introduction to ethics and learn why this is an especially challenging issue for companies that are trying to “do the right thing.”
Ethics are a set of standards that govern the conduct of a person, especially a member of a profession. While ethical beliefs are held by individuals, they can also be reflected in the values, practices, and policies that shape the choices made by decision makers on behalf of their organizations. Professions and organizations regularly establish a “Code of Ethics” that serves to guide the behavior of members of the profession or organization. In the medical profession, for instance, doctors take an ethical oath to “do no harm.” The American Society of Mechanical Engineers’ code states, “Engineers shall hold paramount the safety, health, and welfare of the public in the performance of their professional duties.”
Legal behavior follows the dictates of laws, which are written down and interpreted by the courts. In decision making, determining the legality of a course of action is facilitated by the existence of statutes, regulations, and codes. Unlike ethical considerations, there are established penalties for behaving in a way that conflicts with the law. However, as society evolves, what constitutes legal behavior also changes. For example, until recently, the possession or use of marijuana was illegal in Colorado. As a result of the legislation that legalized marijuana, existing laws will need to be reinterpreted, and undoubtedly additional laws will be enacted to govern what was formerly illegal behavior. Whether or not an individual thinks it is ethical to use a potentially harmful substance, the fact is that the law now allows such behavior.
When businesses try to “do the right” thing—by the law, by their shareholders, by their employees, by their customers, and other stakeholders—there is often a complex interplay of ethical and legal considerations.
U.S. sentencing guidelines for organizations
An organization can be held criminally liable for the illegal actions of any of its employees even when the act goes against company policy. For example, a slot machine company, ETT, was ordered to pay $8.2 million in damages for the wrongful death of Roja Delgado. A temporary employee driving an ETT van hit Delgado’s car, killing her. At the time of the accident, the ETT driver’s blood-alcohol level was three times the legal limit. The court assigned 75 percent of the fault to ETT and 25 percent to the driver.1Eglet Wall Christiansen, “Holding Employers Liable for Employee Wrongs,” HG.org Legal Resources, accessed July 29, 2017. The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the US federal courts system. Chapter eight of the guidelines explains how organizations can reduce their culpability and reduce fines. A company with a strong ethics program is judged less responsible for misbehaving employees.
Even when an employee’s actions go against company policy, the company can be held legally responsible, despite its best efforts to prevent unethical behavior. This applies only when the employee acts within the scope of employment. An employee who deals drugs while on the job is not operating within the scope of employment, so the company would not be held liable for the offense. However, if an employee uses the account information of bank customers to steal money from them, the bank would be held responsible. The most common offenses related to companies include fraud, hazardous waste discharge, tax evasion, antitrust offenses, and food and drug violations.
Punishment for corporate offenses is governed by chapter eight of the Federal Sentencing Guidelines for Organizations. These guidelines were designed to enhance two purposes of criminal sentencing: “just punishment” and “deterrence.” The guidelines apply to corporations, partnerships, nonprofit entities, government bodies, trusts, labor unions, and pension funds. They govern only sentencing for felonies and serious misdemeanors.
Guideline Compliance Steps
The US Sentencing Commission designed an ethics program, and this model has become the backbone of every corporate ethics program. Essentially, organizations are offered incentives for detecting and preventing crime, provided that any offense is reported to the authorities, and no high-level employee has committed the offense. Some incentives include reduced fines, the avoidance of incarceration, supervised release, and reductions in the time to be served.
The guidelines are only a model of “corporate good citizenship” and do not include details for implementation. The compliance steps from the Federal Sentencing Guidelines include the following:
- Establish standards and procedures to prevent and detect criminal conduct, which starts with a code of ethics or statement of values.
- Senior management must be knowledgeable about the compliance and ethics program as well as oversee its implementation and make reasonable efforts to ensure its effectiveness.
- Make reasonable efforts to exclude any individual who has committed an illegal act or engaged in other activities inconsistent with a compliance and ethics program from substantial authority in the organization.
- Periodically communicate the aspects of the compliance and ethics program to its members by conducting training programs and disseminating relevant information.
- Ensure that the program is followed by (1) monitoring and auditing activities to detect criminal conduct, (2) periodically evaluating its effectiveness, and (3) employing systems that allow for anonymity or confidentiality if employees want to report criminal conduct without fear of retaliation. A common practice is a whistleblower hotline.
- Promote and enforce the program by offering incentives for performance in accordance with the program and instituting disciplinary measures for engaging in or failing to take reasonable steps to prevent/detect criminal conduct.
- Respond to criminal conduct and take steps to prevent future and similar offenses when criminal conduct has been detected.
By establishing and enforcing a compliance and ethics program, a company can prevent fraud and shield itself, although not completely, from the repercussions of the unethical and illegal acts of its employees.
Management 2020 text remixed from multiple sources under a CC Attribution-NonCommercial-ShareAlike 4.0 International License. View a complete list of original sources.