Most of us now understand that whistleblowing is an act of courage, where an employee reports alleged misconduct or illegal activities. However, for some the result of speaking up is retaliation from the employer and co-workers. For most organizations, retaliation against whistleblowers is a matter of when and not if. This reality highlights the critical need for leaders to implement strategies to manage retaliation allegations while minimizing risk to the organization.
The consequences of retaliation are significant and far-reaching. Not only does it damage the morale of the workforce and lead to the loss of trust in leadership, but it can also have significant legal and financial implications. In some cases, employers may face severe penalties, such as hefty fines and even criminal charges.
It is crucial for organizations to recognize which employee complaints are legally protected and understand the company's obligations related to anti-retaliation. There are a number of aspects an organization must consider when managing employee complaints to avoid retaliation. Employers must recognize that retaliation takes many forms, from demotions and reassignments to harassment and termination. Therefore, it is essential to have effective strategies in place to address employee complaints and avoid retaliation. Here are some items to consider:
Protected activity
Protected activity is a term used in the legal world to describe activities in which employees may engage without fear of retaliation by their supervisors or company. This term is most commonly associated with laws that protect employees who report workplace violations or discrimination. Such laws exist to protect employees from employer retaliation for reporting violations or discriminatory practices, and to encourage employees to report such behavior. Additionally, protected activity may extend to actions such as union organizing or participation in legal proceedings. Employers who retaliate against employees for engaging in protected activity may face legal action and penalties, making it important for companies to understand and respect their employees' rights to engage in protected activity.
What should leaders do when they receive a complaint?
When a leader receives a whistleblower complaint, it is essential to take immediate action to address the issue. The first step is to take the complaint seriously and investigate it thoroughly, gathering any evidence that may be relevant to the alleged wrongdoing. It is important to ensure that the whistleblower's identity is kept confidential, and that they are protected from any retaliation. The leader should also take steps to prevent any further harm from occurring and to rectify any damage that has already been done. If the complaint received is written or verbal, the leader's response should be the same, however a few extra precautions should also be taken to ensure information received is correct:
- Figure out the scope of what the complaint is
- Take as many notes as possible about the complaint
- Have the employee sign off that what has been written down for accurately
If the complaint is verbal, listen carefully to the employee, taking thorough notes to ensure that all details are recorded accurately. An additional written account of the incident can also be provided to help support the verbal report. Whether via a verbal or written account, the leader should take immediate action to investigate the complaint and ensure that appropriate measures are taken to prevent any further harm. It is also important to protect the whistleblower's identity and ensure that they are protected from any possible retaliation. Have the employee sign off that what you've written down accurately describes their complain
Who investigates the complaint?
When a whistleblower complaint is received, an investigation needs to take place, however, that investigation should be conducted by an impartial and independent person to eliminate any conflict of interest. This could be an internal investigation team, a third-party firm, or an independent party. The chosen investigator should have no personal or professional ties to the whistleblower, or any other individuals involved in the complaint. Additionally, the chosen investigator should have no vested interest in the outcome of the investigation. Investigation should be thorough, fair, and objective, and all evidence should be carefully examined. Those investigating should be given complete access to all relevant information, including documents and witnesses, to ensure that a comprehensive report is produced.
Interviewing the accused
Part of the whistleblower process will involve interviewing the complainant. Whether in person, or via a case management system, a few key points to consider are:
- Reassure the complainant / witness / accused the investigation will be kept as confidential as possible
- Reassure all parties involved that they are protected from retaliation
During the interview process, it is essential to reassure all parties that the investigation will be kept as confidential as possible, and that they will be protected from retaliation. The complainant should be informed that their identity will be kept confidential, and they will not be subject to any adverse consequences for reporting the complaint. Witnesses should also be reassured that their identities will be kept confidential, and they will not be subject to any retaliation for cooperating in the investigation. The accused party should be informed of the allegations against them, but they too should be reassured that the investigation will be fair, impartial, and confidential, and that they will also be protected from any retaliation. It is important to create a safe and secure environment for all parties involved in the investigation to ensure that they feel comfortable coming forward with information. By demonstrating a commitment to confidentiality and protecting all parties involved, a company can encourage open and honest reporting of any concerns or complaints, which helps to create a culture of transparency, accountability, and trust.
Summary
Remember, it's not a matter of if you'll get a whistleblower complaint, but rather it's a matter of when. When you do, employers should take all complaints seriously and investigate them promptly. Ensure that employees who file complaints are not subjected to adverse employment actions. Employers should also provide training to managers and supervisors on how to handle complaints effectively and avoid retaliation.
