By Alexander Holtan
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Law360 (October 5, 2020, 1:00 PM EDT) —
With the U.S. Department of Justice’s “Evaluation of Corporate Compliance Programs” guidance recently undergoing updates and the pandemic forcing most of us into a remote work situation, now is a great time to reevaluate your compliance programs and consider going digital and on-demand with your compliance training.
In my experience, well before the pandemic was on anyone’s radar, major players in the energy industry were already asking for a solution to deliver complex compliance training in a digital format. While in-person training can be beneficial, especially when addressing complex topics, (1) it made it harder to compile data to examine the efficacy of training, and (2) prepandemic, scheduling an entire group of traders and other staff to attend an in-person meeting and sit in a room for several hours posed logistical and scheduling issues and took traders away from their desks during market hours.
Fast-forward to fall 2020, and virtual training has become a necessity to conduct business as usual. Digital on-demand training can solve a lot of logistical and compliance headaches and should be here to stay as part of an effective learning program, even once the pandemic is over.
While the need for higher-quality on-demand training in the energy industry is clear, that demand surely exists across other industries and sectors — regardless of whether a business is functioning in a prior state of business as usual, or within the parameters of a global pandemic.
The updated version by the DOJ includes a number of changes focused on whether and how a compliance program is continuously assessed and improved and how compliance risk is continuously or periodically assessed. The updated guidance includes explicit language regarding compliance personnel’s access to necessary data and whether there are impediments to accessing data necessary to allow for timely and effective monitoring of compliance risks and the compliance program itself.
Tailored Content and Close Collaboration
The updated DOJ compliance program guidance includes new language regarding training. Specifically, the updated guidance notes that a number of companies have adopted shorter and more targeted training sessions, and also indicates that the DOJ expects companies to evaluate the efficacy of their training program.
On-demand training options have been widely available in the market but are hardly ever targeted to a specific industry, making them too broad and generally unproductive for participants who don’t see themselves in the material. This is one of the main problems companies run into when trying to move from custom in-person training to digital learning that employees can take on their own time. Having something that only vaguely matches the content you need could put you at further risk for a compliance violation as unique aspects of an industry are ignored and, consequently, training recipients can be under-engaged.
For a solid on-demand compliance training that is accessible 24/7, consider creating a bespoke e-learning solution together with one of your clients. When doing so, I strongly recommend collaborating as closely as you can with your client.
A key learning for us was that clients’ employees need to be able to see themselves in the training, so it has to be as custom to their world as possible. In addition to the content, this includes branding, language, safety and security considerations. For example, something as seemingly innocent as stock footage of people walking while using cellphones cannot be used for most energy clients as major oil companies would regard that situation as a workplace safety violation.
Identifying Market Needs
When evaluating if developing digital compliance training products for your client base is viable, first assess the market need. We interviewed several dozen clients in the energy industry to see if there was a need for this digital learning and what clients were willing to spend on it. This led us to identify a need for derivatives trading compliance training in the energy industry, and also showed us what other needs exist we might tackle next. As an added bonus, having a clear understanding of clients’ interests and preferences makes marketing your training solutions a lot easier down the road.
Scoping the Product
Once you’ve assessed training needs and a specific starting place, the next step is to review the available technology solutions by level of complexity, flexibility, accessibility, cost and development time. We scoped 10 different levels of sophistication for us to consider, from basic PowerPoint to interactive quizzes and games.
Then, compare the options with your clients’ current solutions and levels of sophistication, as well as their appetite for change. If their current solution is a basic PowerPoint, they might not be ready to jump to the most cutting-edge possibility available. Said another way, don’t build a Cadillac if a motorized bicycle would better meet the need.
Finding a Technology Partner
Four elements to consider when sourcing and evaluating your e-learning technology partner are: (1) technical coverage and roles, (2) product ownership, (3) process competency and (4) working style.
Technical Coverage and Roles
Do you have e-learning technology development capabilities in-house? If so, are those capabilities matched to the sophistication level required? How about technical experience to troubleshoot bugs or glitches within your modules when they are uploaded to your client’s learning management system? Are you able to host trainings for clients who might not have an internal learning management system? Assess your internal capabilities in these areas and ensure that your technology partner is able to cover any gaps.
Also, have explicit conversations on roles. For example, who will manage and fix any technology issues with your clients and how — are you the middleperson, or will your learning partner troubleshoot directly with your clients? Trust us, you’ll want a technology partner you trust to work directly with your clients.
You might assume that you own the training materials developed with your content, but it is worth a conversation to make sure that view is shared. Ensure your right to the asset, and also the underlying data if you provide hosted trainings as both can be valuable assets.
If you are new to developing digital learning products, then you will likely be looking to your technology partner for guidance on the process. How will we get from A to B, what is required of me and how long will each step take? Your learning partner should have information and a blueprint related to the following:
- Scope of the training;
- Required materials;
- Creation of a learning script;
- Establishing the look and feel of the training;
- Preview modules;
- Dynamic exercise options; and
- Module delivery.
Communication and collaboration are key for successful development of new e-learning products. Some technology partners can have the tendency to tinker in the proverbial garage and then come back to you with a finished product. It is much more effective and efficient to work hand in hand throughout development and regularly approve steps along the way.
Creating bespoke solutions does not prevent you from repurposing the training for other clients. We passed through the hard costs for the software and development to our client but provided the content on a client development basis on the agreement that we would be able to sell the training to other clients without restrictions.
By creating flexible templates and entering a risk-sharing agreement with your client, you can be both flexible and specific to your individual clients’ needs and create a return on investment for the firm. And with an already established list of clients who are interested in this training in hand, you can then easily take the next step and market your training programs.
The DOJ’s recent update includes a question about evaluation of the efficacy of compliance training. To properly meet the implied expectation of the regulator, digital on-demand training is becoming more and more important. By having your training accessible in a digital format, you cannot only ensure that employees have that access at any time, but you can also review relevant usage and performance data that allows you to tweak and improve modules, add content and identify potential compliance blind spots and shortcomings.
In short, training effectiveness can improve in a measurable way when you go digital and on-demand. Digital solutions allow you to record completion data that you can then have available for inquiries. They also allow you to review and see where most of your employees struggle or excel, data that you can use to adjust how you convey specific topics in the individual modules.
Uncertainty Can Drive Innovation
For those of us who started working on digital compliance trainings before COVID-19, the real value beyond what we set out to do was not apparent at the time. But with the intense focus on remote working now, being able to do compliance training virtually and having data and completion analytics at the ready when needed is a much larger benefit for clients than initially anticipated. The pandemic has certainly accelerated the need for this kind of client relationship approach that benefits both sides.
The relationship development aspect in this is also considerable. For example, we have had weekly contact with our co-developing client over the past year to create these programs, and that in itself has been of incredible value to the firm. It has also opened our minds to identify new opportunities in the e-learning space.
Alexander S. Holtan is a partner at Eversheds Sutherland.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice
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