Keywords

3.1 Introduction

Traditional regulatory approaches tend to produce one-size-fits-all regulatory frameworks that gloss over important differences among organizations and rely on command-and-control style enforcement. Contemporary regulatory approaches—performance-based regulation, responsive regulation, risk-based regulation, light-touch regulation, and so on—rely on regulated organizations to design and manage homegrown systems. Beyond achieving compliance with regulatory expectations, organizations must provide an account of how they organize to produce compliance. Regulated parties are encouraged to tailor their compliance programs, continuously observing, aligning, and improving compliance efforts rather than adhering to off-the-shelf prescriptions. Such contemporary approaches require that organizations internalize the regulatory work of setting standards and guidelines, developing policies and procedures, auditing, and correcting.

This shift in regulatory approach, combined with the growth of prosocial demands on organizations, requires that organizations develop robust accountability infrastructures: offices, techno-legal experts, programs, operating procedures, technologies, and tools dedicated to keeping the organization’s operations in line with regulations and external standards [1]. This includes systems for managing health and safety, environmental sustainability, enterprise risk, diversity and inclusion, quality, GDPR, corporate social responsibility, and so on. As the complexity and sophistication of accountability infrastructures grow—aided by consulting firms, professional and industrial associations, and information technologies—organizations should not lose sight of the fact that training programs, manuals, inspection checklists, standard operating procedures, and databases do not by themselves create compliance. Accountability infrastructures rely on human expertise and discretion to understand local conditions and constraints across the organization, and to situate and adapt instructions to suit these conditions in ways that preserve compliance goals.

The central issue then is that although an organization has a single, unified accountability infrastructure—one program, one set of policies and procedures, and so on for environmental management, or health and safety, or risk management—this infrastructure must produce compliance across a dynamic, complex organization. This happens when and because compliance managers and officers make a single, unified accountability infrastructure multiple and diverse in its day-to-day implementation. This approach to compliance work is pragmatic in the sense that rules and requirements are altered to be useful in relation to the context in which they are applied. Pragmatic compliance depends on staff recognizing the need for local adaptation of rules and appropriately varying rules based on a deep understanding of regulatory expectations, local operations, and local work cultures. Together this techno-legal expertise depends on skills in interpreting, adapting, and narrating compliance.

3.2 Studying the Work of Compliance Officers

The daily, face-to-face work of ensuring that organizational operations align with regulatory demands and other prosocial concerns is the responsibility of compliance officers. Over the past 20 years, I have observed technicians, officers, and managers responsible for compliance—health and safety, radiological safety, and biological safety—as they work [2,3,4,5,6]. Following them on inspections, attending their trainings, and watching them solve problems, write procedures, and manage tight budgets, I have seen them in action in their organizations. I have also trailed them at national conferences, regulatory training sessions, professional association meetings, and showdowns with regulators. Through extensive longitudinal and comparative observation, interviews, and archival work, I have observed different approaches to compliance work.

Compliance officers who work pragmatically understand their work as managing the gap between the compliance expectations and the daily enactment of these expectations [6]. Their work is to narrow this gap as much as possible by understanding how the daily performance of compliance expectations may be experienced as difficult or incompatible with operational goals and procedures. From this perspective, producing compliance requires understanding the social, political, and operational barriers to following rules and procedures rather than psychological ones. To take such an approach requires that compliance staff develop an extensive and deep understanding of the operations and work of the organization. Further, it requires that they develop an appreciation for the variation of conditions that exist across the organizations including differences in organizational subcultures, management styles, budgetary pressures, turnover rates, forms of expertise, etc. To acquire this appreciation, compliance staff must spend a considerable amount of time in and around the organization and outside of their offices, away from their desks, developing local knowledge and relationships. Not all compliance offices take a pragmatic approach to compliance. Those who lead and direct the compliance staff display different approaches to conceptualizing or defining compliance and managing it [2, 3].

3.3 Producing Compliance Pragmatically

Compliance is produced pragmatically when compliance staff understand, appreciate, and attend to variation in the organization. This knowledge is used to interpret and adapt regulation, and narrate compliance. The claim is that when local context is taken into account in developing and enforcing compliance efforts, compliance is more likely to be consistently observed. By articulating and fitting regulation in relation to the situation in which it must be enacted, regulation will be better customized and focused to that situation. This approach should not be understood as a cover for incoherence or a slide into permissiveness. Instead, attention to the local and the particular allows organizations to meet the universal ends that regulation seeks. Rules that recognize and reflect the diversity of situations make the enactment of regulation versatile and multiple in a way that is not only compatible with but in service of its universal goals. A pragmatic approach weaves regulation in a sensible, responsible way through the human foibles, cycles of work, constraints on change, limited money, and deadlines that make up organizational life.

3.3.1 Interpreting Regulation

Moving across multiple regulators and sets of regulations, compliance officers must “work out” which regulations are in play for particular activities in their organizations, what those regulations “say”, and how to manifest them appropriately across the organization. The need for interpretation stems from the multiple, misaligned, complex, general and incomplete quality of regulations. Regulations, because they must cover a wide range of contexts and situations, are often general and incomplete relative to a particular context. Compliance officers must fill in such voids. Regulations may also be, at first glance, appear infeasible relative to the scale or breadth of an activity within an organization. Compliance officers seek clarification from regulators about these requirements and how they can be made feasible within the context. Regulations are also often silent, unable to anticipate every situation and emerging situations. In this case, compliance officers must work with regulators to understand how to appropriately hand such situations.

The need for interpretation also stems from the particularities of the organization’s activities and how they are staffed, mechanized, and organized. Equipment and architecture may deviate from ideal. Combinations of hazards may not be directly or easily addressed in regulations. Compliance officers try to understand what regulators expect from the organization but also how the organization can be made—through local fixes and workarounds—compliant. This “working out” is done with the possibility that the interpretations produced may or may not be shared by regulators or be acceptable or affordable from a managerial perspective. The interpretative work of compliance officers ultimately defines compliance within and across the organization, producing local prescriptions that are externally and internally legitimate.

3.3.2 Adapting Regulation

Adapting compliance practices across the organization depends on recognizing variation across operating situations and contexts. This variation may stem from physical, technological, or cultural differences in the organization. Units or divisions may emerge from different histories, be built on different professional cultures, or have significantly different status and resources in the organization. Compliance practices, if they are to be useful, need to be adapted in accordance with these varying contexts. Compliance oversight including inspection, training, and informal dialogue should also vary across contexts. Some pockets of the organization require more frequent inspection, not because of the inherent risk of activities, but because of the local culture, turnover, novelty of the operations, and so on. Adaption should also consider the temporal rhythms of different operational aspects, assessing and assisting compliance efforts according to the operational life cycle.

Variation within organizations is at times understood as deviance from and failure to conform with centralized standards and norms. Such an understanding ignores the real differences in constraints and resources across local units within an organization and may prompt efforts to punish and homogenize locally productive variation. Pragmatic compliance requires that compliance officers have detailed knowledge of the landscape of the organization, understanding variation in conditions and resources so they can calibrate their interactions and tactics to particular situations. Accommodating variation may involve giving different units or groups some freedom to develop their own responses and practices in response to regulations. It may also involve experimentation—iteration and learning—with different approaches to compliance across the organization.

3.3.3 Narrating Regulation

Compliance staff working to bring accountability infrastructures alive across the organization must go beyond measuring compliance to providing accounts of how they organize to produce compliance. They do this through talk, text, numbers, and figures. They are required to narrate compliance processes to several audiences, and these narratives perform different functions. External parties, including regulators require that compliance offices, periodically and formally account for how they more or less align organization operations with regulatory expectations and how they achieve this. These are well-known moments of narration. As are narrative accounts, again often formal, that are sent up the hierarchy to inform senior management and the board of compliance activities. These formal moments of narration are crucial for securing approvals, resources, and legitimacy.

Narration of compliance and non-compliance also occurs on an ongoing basis, through less formal means, among compliance officers, managers, and employees. These accounts provide a means of through compliance staff teach, learn, and legitimate the human judgment and professional discretion needed to implement accountability infrastructures. They are also a crucial means of developing interpretations and adaptations of regulations. For example, in one organization, concerns about drain disposal of materials across over 500 laboratories and in accordance with myriad regulations emerged and were addressed through months of inquiry accompanied by ongoing narration. Histories of the buildings’ infrastructures that had been built and renovated over many decades were required [6]. These inquiries revealed that multiple narratives circulated for the same building, leading to misunderstandings about compliant practices.

Articulating variation in compliance practices and their effects verbally or textually provide a circulating means for compliance officers and managers to understand how interpretation and adaptation work to create compliant operations. Narrating compliance practices also facilitates learning and further adaptation by sharing near misses, incidents, accidents, and failed attempts to vary the regulation.

3.4 The Challenges of and to Pragmatic Compliance

The work of pragmatic compliance depends on several conditions. First, it depends on hiring compliance workers who understand their work through a holistic and pragmatic lens or training them to understand this. Rather than understanding their work to be strictly delimited to creating and managing accountability infrastructures, they must recognize that their work is to bring these infrastructures alive in different ways across the organization [7]. Second, it requires more than techno-legal expertise. It requires an interest in and knowledge of the operations and cultures that make up the organization. Compliance staff, to appropriately adapt regulations to be functional and meaningful across the organization require significant knowledge of the organization’s operations and its variation. To generate and cultivate such knowledge compliance staff need to spend significant time interacting with and learning from the managers and workers whose actions and routines they are trying to shape. In addition to knowledge, they are developing relationships and channels of communication that keep their knowledge base current. Third pragmatic compliance depends on empowering compliance staff with time and authority to interpret, adapt, and narrate. Importantly, these workers require the authority to adapt rules and to narrate these alternatives.

Beyond the work of compliance staff, pragmatic compliance depends on organizations and regulators accepting multiple narratives of the methods and means of producing compliance. Rather than requiring a single, unified account of compliance, multiple and varying accounts must be accepted and understood as a signal of learning and adaptation rather than deviance. This may be the most significant challenge for pragmatic compliance. Regulators often expect and organizations design singular systems that provide a strong, unified narrative of compliance. These systems are supported by data collection, inspection, and reporting systems that are standardized and thus singular. How to make the expectations and supporting systems “pragmatic friendly” is an open question. Again, it seems to rely on the fundamental observation that human interpretation, adaptation, and creativity are necessary to bring legal and technical systems alive.

3.5 Conclusion

Ultimately managing the gap between the compliance expectations and the daily enactment of these expectations depends on changing and sustaining change in the daily routines of the organization. Creating and sustaining organizational change is a significant challenge. Thus, beyond operating pragmatically, compliance staff must consider how a reinforcing system of bureaucratic, cultural, and behavioral support can produce compliance [8]. Again, rather than a singular approach to compliance, multiplicity is required to generate change. This need for multiplicity along with appreciation of variation—healthy and necessary variation—in organizations emphasizes the need for compliance staff who are enabled and able to exercise discretion—interpretation, adaption, and narration—to bring regulation alive in the organization.