In theory, it should be a good thing when employees come forward with a whistleblower report.
They’ve spotted a threat to your organization and are giving you the insight you need to address the problem before it becomes even more serious.
Unfortunately, even in the best-case scenario, whistleblower complaints can still be stressful for employees, who may fear repercussions (like losing their job) for filing a report, and the organization itself, which has to investigate a complaint that could have serious consequences for its business and reputation.
To avoid these stresses, smart companies adopt best practices that take the guesswork out of responding to whistleblower concerns. Here are a few strategies that organizations like yours can implement to optimize their internal investigations.
Make It Possible for Employees to Speak Up Safely
As part of your organization’s training, all employees should be taught a clear procedure for reporting violations and problems, whether to a manager, an HR representative or some other official. You may want to include reminders about the policy through signage in your breakrooms or on your company’s intranet.
Meanwhile, provide clear processes to managers for how they should collect and handle complaints, communicate with the whistleblower and continue ongoing operations as an investigation proceeds. You should also schedule annual “refresher training” on these rules.
And you should have a consistent process for investigating reports in a way that treats all the parties involved fairly. (One way to make that process more neutral? Consider hiring an outside firm to carry out the investigation.)
Don’t have a policy like this yet? Set aside time soon — ideally now — to create one. This framework should be in place before the company is involved in a whistleblower situation. Investigating a report is challenging enough without having to create a set of policies and procedures on the fly.
Depending on the size of your organization, you might consider setting up a whistleblower hotline or website where employees can anonymously file reports. Employees may view these platforms, which are usually operated by third parties, as more credible and, thus, will be more likely to come forward with information.
OSHA has more information about creating an anti-retaliation program here.
Take the Report Seriously
In many cases, an employee (or contractor or another partner) who submits a whistleblower report is someone who is genuinely concerned about the potential violation and what it could mean for the organization. They are probably not eager to be part of an internal investigation, but they have taken this step because they want to do the right thing.
But, even if you doubt the report is legitimate or you suspect the reporting party of having ulterior motives, it’s essential to give the matter your full, professional consideration. The reporting party might not be a perfect employee, but they may very well have identified a serious problem in your organization. Your ability to get further information from this whistleblower and others will depend on your ability to earn their trust.
That information might even be life-saving. For example, if your whistleblower points out a safety hazard in your workplace, that information could help you prevent employees from being injured or even killed.
So when a whistleblower submits a report, acknowledge receipt quickly and politely. It’s the right thing to do, and it reduces the risk that your employee will take their complaint to the press or a government regulator.
One other thing: Part of taking the report seriously means that, when you talk to the whistleblower, you don’t downplay the seriousness of a potential problem or make excuses for why it happened.
Enforce a Zero-Tolerance Policy Against Retaliation
Retaliating against a whistleblower can turn a difficult situation for your organization into a full-fledged catastrophe, with the opportunity for lawsuits, negative publicity and more.
For one thing, retaliating against an employee places you at risk of being investigated and fined by OSHA, the Occupational Safety and Health Administration, which defends employees who face retaliation for filing a report. OSHA is authorized to investigate by more than 20 whistleblower statutes covering workplace safety and health, anti-money laundering, food safety, maritime and many, many other areas.
(And that’s not counting the various state-level protections that are in place.)
Under OSHA’s rules, an employer can’t fire an employee or take adverse action for filing a report or engaging in any other protected activity. According to OSHA, an “adverse action” could include:
- Demoting, firing or laying off an employee
- Giving an employee a worse position, pay or hours
- Refusing to approve overtime or a promotion
- Excluding an employee from meetings or training
- Denying benefits
- Failing to hire or rehire
- Interfering with the employee’s ability to get a job somewhere else in the future
- Making working conditions so difficult or miserable that an employee quits
- Threatening, harassing or intimidating an employee
- Threatening to call — or actually calling — police or immigration authorities on the employee
Even subtle actions could be considered adverse if they would “dissuade a reasonable employee from raising a concern about a possible violation or engaging in other related protected activity.” That might include isolating or mocking the employee or attacking their performance.
When new complaints are submitted, remind managers and others involved in the investigation about the different forms of retaliation and how to avoid them.
Protect the Whistleblower
If a report alleges that a whistleblower is being harassed or otherwise mistreated, you should make sure the whistleblower is kept away from the person who’s accused of misbehavior. That might mean altering different employees’ schedules, but you should clear the changes with legal counsel to ensure they could not be considered adverse actions.
One of the best ways to protect whistleblowers is to maintain their anonymity as much as possible. Their name should not be shared with any others in the organization unless absolutely necessary for the investigation.
But you should avoid promising perfect and complete confidentiality. It might not be possible. For example, you will probably need to ask your IT team to preserve the electronic records and communications of the reporting party.
Be Thoughtful When Communicating with Whistleblowers
As mentioned earlier, people who file a whistleblower report might be feeling additional stress and may not immediately trust you, so it’s important to be mindful when communicating with them.
Positive, constructive communication can help you get the information you need to resolve the situation quickly and fairly. Poor communication can turn off your whistleblower and derail any investigation.
- Be transparent. Explain the process for handling reports like this and what will happen over the coming days and weeks. Doing so can help build trust with the reporting party.
- It may take time to earn your whistleblower’s trust and get them to share everything they know, especially if you’re communicating through an online platform. Be careful not to make demands or pressure your whistleblower.
- While it’s important to be neutral, it’s also appropriate to thank the reporting party for coming forward.
- Give regular updates on the investigation’s progress, ideally every week or two. This can help keep whistleblowers engaged in the process. Sad but true: Some reporting parties tune out after making the original complaint.
- Once the investigation is complete, communicate the results to the whistleblower, even if your investigators ultimately decided the report was unfounded. Keep in mind that you may not be able to tell the whistleblower everything they want to know about their report’s disposition, such as detail on disciplinary actions. Legal counsel can provide guidance here.
Create Partners, Not Adversaries
How you interact with whistleblowers is critical, not just to the complaint at hand, but for your organization’s larger culture.
If an employee feels like their report wasn’t taken seriously, or if they feel like they were viewed as an adversary, that will ultimately affect how they see the organization. Even if they don’t end up going outside the organization, they probably will tell co-workers about their experiences. And that can create a chilling effect that will limit your ability to tackle important problems.
The better alternative is to create a system that encourages employees to bring up their concerns without fear of reprisal, so your organization can uncover dangers and violations quickly, before they become unmanageable. Bad actors — the people who are violating the law or company policy — will see that type of behavior won’t be tolerated. The rest of your team will enjoy a greater sense of respect and trust in their organization to do the right thing.
It’s just a smarter, more effective way to operate. And it all starts by taking whistleblower reports seriously and treating the people who come forward fairly.
- There is no single answer for how to respond to a whistleblower’s report, but there are lots of things you can do to mitigate the fallout with grace.
- Create a company culture where employees can speak up safely, and create a framework that protects people who come forward.
- Treat all complaints seriously — they can help you uncover big problems in your organization quickly.
- Have a zero-tolerance policy for retaliation or anything that resembles it.
- Be thoughtful when communicating with whistleblowers. Transparency is the goal, to the extent allowed by the law and company policy.
At Chesley Brown, we understand that planning for the unknown can be daunting. That’s why we’ve built a framework that enables businesses to navigate and anticipate risk before it becomes a crisis. We are here to manage risk so you don’t have to. If you or your team have questions about conducting effective corporate investigations, our experts are here for you.
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