Introduction

Even as the COVID-19 pandemic continues to evolve and its ultimate toll is yet to be decided, one consequence of the pandemic is set to become permanent – the Work From Home (WFH) arrangement. What was initially perceived as a stopgap measure is now accepted as an enduring legacy of COVID-19, carrying with it various benefits and challenges – not least in the area of competition law compliance. Increasingly, businesses bemoan the lack of oversight of their employees’ activities as they operate from home – where business meetings (including with competitors) are more likely done in neighbourhood cafes and even in the comfort of their own homes. The rather unpredictable WFH requirements imposed by the authorities have also made the scheduling of in person compliance trainings a near impossibility as the pandemic rapidly evolves through variants that are increasingly more contagious.

Just as the mRNA vaccines have provided humans with a way out of the pandemic, we have identified a namesake approach in helping businesses manage their competition law compliance in the WFH era.

The mRNA Approach

Management’s Commitment

As with any other challenges to a business, the management’s buy in and commitment remains key to any successful competition compliance policy. Dentons Rodyk is heartened to note that notwithstanding the pandemic and the increased pressures on bottom lines, many of our clients have, through the resolve of their management, continued to maintain their compliance initiatives albeit through adapted models. From the use of multi-training rooms (where employees are segregated in small groups across the business premises) to small-breakout sessions of key employees (identified through their risk levels) to comply with prevailing safe distancing measures, such businesses have maintained their compliance training initiatives through the sheer will and determination of their management. While there may be increased costs and complex logistics associated with such adaptations, this is ultimately viewed as a worthy (and cheaper) opportunity cost as opposed to a finding of competition law infringement.

Review and Revamp Competition Compliance Policies and Processes

The WFH era has undeniably brought to the fore the element of trust between employers and their employees. The tension lies, among others, in maintaining productivity and remaining legally compliant whilst giving room for employees to adapt to their home environment for work purposes. Admittedly, the experiences may differ vastly from business to business. It is therefore important for any business to review and revamp its current competition law compliance policies and processes to ensure that they remain current and relevant.

Just as employees are required to ensure the confidentiality of business documents and personal data that may now be sitting in their homes, so too must the approach for competition law concerns be reviewed and adapted. Where competition related queries were previously floated easily and readily in the office environment, new measures must be put in place for the WFH setting.

It is therefore heartening to note that various businesses have adopted online self-click assessment tools for competition law related queries for their employees. Through a series of questions and click-on responses available on their intranet, employees are given real time responses to their questions on business practices that are either completely compliant with competition laws or require redirection to the relevant in-house counsel/external legal counsel, for more complex scenarios. Such initiatives greatly reduce the risk of “winging it” tendencies amongst employees. This retooling of the compliance model is likely to shape and dominate the nature of legal compliance and it will be worthy for businesses to review and transform their policies given that WFH is here to stay.

Networking and Communication Guidelines

Just as employers have generated various house rules on WFH – ranging from dress codes for internal and client virtual calls to prescribed meal periods, it may be opportune to establish guidelines on third party and competitor communications in the WFH context.

While the risk of improper contacts are arguably no greater when working in the office or at home, it is not inconceivable that WFH has generated an illusion of clandestineness amongst employees. This may decrease employees’ risk aversion and increase their inclination towards improper communications in the mistaken belief that the risk of getting caught in the WFH setting is more remote. The rise of informal communications via the plethora of social messaging apps that have emerged during the pandemic compounds this dangerous illusion. Businesses should therefore establish guidelines for business networking for WFH employees – this may range from modest requirements to reporting adhoc meetings with competitors to requiring formal communications to be done formally (e.g. via work email) where the employer will have a record of the communications if necessary. Similarly, where communications are done informally via messaging platforms, employees should be encouraged to include their immediate supervisors in such conversations to ensure that the discussions remain kosher. Admittedly, an employee is more likely to ensure proper communications when there is an element of oversight.

Alternatives to Existing Compliance Initiatives

Just as businesses allocate significant resources towards digitalising their operations in the WFH era, so must the efforts on compliance be increased. In the absence of in-person interactions, businesses need to continue their compliance advocacy through alternative digital means. Webinars, periodic compliance fireside chats/roundtables (with the in-house legal team) and virtual video/online trainings are increasingly sought after alternatives to ensure that the compliance does not become an afterthought amongst employees.

Conclusion

The COVID-19 pandemic has dominated the headlines of human society for the past two years and will likely continue to do so for at least a year or two more (if not longer). Two years on, it is increasingly untenable (and potentially reckless) to think that a business can defer its compliance initiatives until the pandemic has finally abated. It bears reminding that the costs of a competition law violation can indeed be hellish in nature – ranging from multi-million dollar financial penalties, debarment from tenders, drain on precious management time and reputational damage. With proper safeguards, the WFH need not be the Achilles heel for businesses when it relates to competition law compliance. Dentons Rodyk stands ready to offer its various competition law compliance initiatives to help clients ensure that their WFH practices do not become Waiting-For-Hell scenarios.