By Ricardo Meza
rmeza@greensfelder.com
The role of today’s corporate compliance officer are varied and many. Among other things, corporate compliance officers design or implement internal controls, develop policies and procedures to assure compliance with numerous laws, and establish employee ethics training programs. In addition, most compliance officers find themselves conducting internal investigations based upon complaints, some of which are anonymous. When faced with an anonymous complaint, one might initially think, “it’s an anonymous complaint, why not just ignore it?”
As a threshold matter, an organization has to decide whether to allow employees to submit anonymous complaints. This decision has many critics and supporters. Those who oppose allowing the submission of anonymous complaints argue, among other things, that such a policy reduces the number of frivolous or bad-faith complaints. On the other hand, supporters argue that allowing anonymous complaints to be filed provides employees with an avenue to report misconduct without fear of retaliation. There are merits to both of these positions. Nevertheless, regardless of the pros and cons of allowing such filings, the reality is that many companies do allow employees to file anonymous complaints and, even if a company does not, an employee may still submit an anonymous complaint. For compliance officers with limited time and resources, deciding whether to investigate a matter themselves or ask outside counsel to investigate can be challenging. Below is information regarding the types of anonymous complaints you might receive and guidance or hints to help you decide whether or not to investigate and potential consequences of not ignoring such a complaint.
The Vague Anonymous Complaints
There are generally two types of anonymous complaints a compliance officer might encounter. The first is the vague complaint that provides little, if any, valuable information. These complaints are fairly simple to deal with. Examples might include complaints which allege that:
- management is violating rules and refuses to take action; or
- a division supervisor is “corrupt” or unethical.
These types of anonymous complaints can be easily resolved because there is little to investigate. In addition, there is usually no corroborating evidence to support the allegations. In each of the above examples, the person who filed the anonymous complaint does not provide the name of the alleged wrongdoer, nor do they identify a specific rule or policy the alleged wrongdoer violated. Thus, without additional information, it would generally be futile to spend time investigating this type of complaint.
The Factual Anonymous Complaint
The second type of anonymous complaint is usually much more fact intensive and generally includes very specific information about the alleged wrongdoing. In addition, this complaint will usually, although not always, be accompanied by corroborating evidence. For example, a factual anonymous complaint might identify persons by name and title and might even cite to a specific rule or policy is being violated. These complaints might allege that:
- employees at a particular company’s division hire unqualified, politically-connected, and incompetent people labeled as “staff assistants;” or
- that board of director (A) recommended that the company invest funds in Bank (B) and is receiving consideration from the bank (Bank B) in regards to his/her outstanding personal loans.
There are several things that differentiate the more fact specific anonymous complaints from others which would not call for an investigation. First, if in reviewing a factual anonymous complaint, the compliance officer determines that the complaint alleges things that if true allege serious wrongdoing, as a compliance officer, you should probably investigate.
Second, in reviewing factual anonymous complaints, the compliance officer should also consider who might have filed such a complaint. For example, if the complaint appears to be the type which an employee with “inside” company information may possess, this fact likely increases the veracity of the complaint and might reflect some merit. An anonymous complaint that is factually specific might indicate that it was filed by an employee who wishes to expose the misconduct but is fearful of retaliation either because the alleged wrongdoer might be a direct supervisor, a co-worker, or a high-ranking company official. Although a compliance officer who receives this type of allegation would be unable to interview the person who filed the complaint, the officer should probably still take investigative steps to substantiate (or not) the complaint.
The third, final and perhaps the best reason to investigate a factual anonymous complaint might be because as the corporate compliance officer, that is your job and failure to investigate may have consequences for you and your company. If it turns out that you received a factual anonymous complaint, which on its face alleged wrongdoing against a high-ranking official and appeared to be filed by someone in the company who had inside information, but you do not investigate, you may find yourself having to justify your non-action. As a compliance officer, you should be aware that an anonymous complaint you received might also have been submitted to other investigatory agencies, such as the local prosecutor’s office, the state inspector general, the United States Department of Justice, or a member of the news media. If one of these third-parties investigates the complaint and discovers wrongdoing, they will likely also discover that you too received the complaint, but took no action. As a result, you may then find yourself responding to questions about other anonymous complaints you may have received but took no action on. Worse, perhaps you may become the subject of a newly launched investigation, the results of which will likely not be anonymous. So the next time you receive an anonymous complaint, don’t just ignore it.
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Hmmm…whether the reporter is known or is anonymous, my approach has been to handle each received report in the same manner. It reminds me of a long time and successful nurse who works in the ED who has dealt with genuine reports of distress by patients and “made up” reports of distress to game the system and jump to the front of the line to be seen. I won’t go into specifics…but the takeaway I took from her which I apply now is that I treat all reports with the same level of review in terms of following the same steps…which at no time includes that they are ignored on any level.
We review every complaint, whether anonymous or not, in the same methodical way. Even non-specific complaints are reviewed, even when a finding of serious wrongdoing is not likely. An anonymous report may be a sign of employee relations/communications issues, maybe a supervisor who is not paying attention to issues or who is unresponsive to everyday workplace conflicts. On these, we meet with HR and management to devise a plan to address the concerns, where possible. We can generally zero in on the workplace location or department, and there have been occasions where there has been an actual problem or issue that was not handled effectively by the supervisor, or an incorrect perception of favoritism or unfairness. In all cases, we follow up with a message to the anonymous reporter, via our third party reportline, to let them know we heard them, to ask any follow up questions, and to encourage them to bring their concerns directly to those who can help them, i.e. their own manager, another manager, or HR.
Could you tell me what is your third party report line process to get feedback back to an anonymous callers?
My experience with hotlines or other similar communication channels is that an anonymous caller is given some type of number. The caller can then call back and provide the number so that the caller can receive feedback or a summary of what occurred as a result of the hotline call. For the most part, I’ve seen this approach work very well for all involved.
I am curious how others might handle the following scenario – Anonymous report received by the hotline. Reporting party reveals details about a meeting that occurred between the reporting party and two other people. The reporting party provides the names of the other two, the meeting date and time. How do you go about investigating all the while respecting the reporting party’s desire to be anonymous?
It certainly depends on the nature of the report. If it seems likely that there may be serious wrongdoing, then make an investigation plan. The hotline should have a provided the caller with a reference number. A follow up reponse to the anonymous caller can fllow through the hotline. The response can include a series of questions to help you decide the next steps, and should definitely ask the caller to contact you directly. There is only so much you can do without having more information. Clearly, if there were only three people in the meeting, and the caller is one, they should be told that best efforts will be taken to maintain their anonymity, but there can be no guarantees. Everyone involved should be reminded of their duty to cooperate as well as the company’s policy of non-retaliation.
Certainly someone may report an issue anonymously but that in and of itself does not guarantee anonymity. We stipulate that to the greatest extent possible, Compliance will protect the rights of all employees during any inquiry, investigation or fact finding process, including taking steps to protect the privacy of the accused and of those who, in good faith, report alleged non-compliance. We also reiterate the non-retaliation policy.
As mentioned by Maryann, there are likely going to be incidents that though reportedly anonymously…a simple process by elimination likely will allow those involved to deduce with a relatively high level of confidence who is the “reporter”.
I am guessing many of us have stories on how staff and management were able to pierce the veil of anonymity by looking a punch in/out records, staff schedules, and other trails that were readily available…all while waving the “we respect anonymity”.
Is it any wonder why in turn people have very little confidence or faith in a culture that supports a genuine “non retaliation” philosophy?
Unfortunately, through this experience we learned that we did not have a way to communicate back to the reporter via our hotline. 🙁
SLA, maybe you need a new hotline. Ours gives the caller a reference number, which we also receive. We post our questions and responses back to the hotline, using the assigned reference number and, if we are lucky, the caller follows up (sadly, this happens less than half the time!) and is read the questions and responses.
iI recently resigned from a nonprofit company in CT to join another nonprofit company because of biased and unethical practices . The matter was brought to their compliance officer who promised to investigate the matter based on the parameters in the complaint which she agreed was a valid reason for the complaint. She admitted significant discrepancies in her preliminary findings .it has been over 6 months now and this compliance officer has not responded to any of my request for an update on her investigations . Please advise on next steps a former employee could take inorder to have this officer comply with my the request for an investigation . I will forward this matter to office of the inspector general for further review as well as my attorney . Is there a compliance board to file a complaint against a compliance officer ? Your advise would be greatly appreciated . I have all supporting documents to prove my case in which this officer will be listed in my complaint .
What if HR manager tells the accused boss that potentially one of his employee or co-workers had made a complaint against him? And ask him to investigate himself? Is it allowed?
I recently have been the subject a an anonymous “factually based complaint.” This complaint alleged a hostile work environment I was informed by one of my employees nt party to the complaint that this was actually occurring and had no merit. Based on my understanding of a Hostile Work Environment it was have to be a violation of Title VII. Based on Allegations that were shared with me, which were all taken out of context, were all made from individuals on my team that were all of the same race . These allegations of my alleged behavior were comments taken out of context having to do only with their poor behavior and poor performance. I believe the written warning filed against me was contrived to protect the company against the same allegation. Once I received a warning, they “the company” would have a defense if these “protected whistlers” decided they wanted to go further. What are my rights? Do I have the same protections If I were to also file an ethics complaint against their ethic complaint?
It has been my experience that even if there was no way to reach the caller. The information should be investigated. I have managed IMS where I had the supervisor for the area in question investigate the reported events. If an occurrence was found to be rue then a plan of correction was put in to place.
Anonymous ethics reporting is a weapon, used without recourse on unsuspecting people. If the reporter knows that blow back is not going to happen, they can drop complaint, after complaint, after complaint. Having been the victim of a complaint and subsequent investigation (which was found to have no merit), I feel my reputation was sullied and my name dragged through the dirt. Tell me how this is fair and necessary. If you aren’t willing to stand up for your concerns then you shouldn’t be reporting lies as a way to retaliate against a boss or co-worker. HR & Ethics investigators are not impartial, you are guilty until proven innocent.
What do you do when a current (or unlikely past) staff sends complain letter to several office staff (including their supervisor and even administrative assistant with litany of concerns from gender harassment, hostile workplace environment, person being angry about asking questions about salary, not providing manuals for staff to use, changing paperwork, etc (So many hard to mention all.) Was about one person. Was anonymous but had identifying details to fpossibly determine sender. How to address?
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