Can Whistleblowers Remain Anonymous During an Investigation?

A whistleblower who comes forward with information that could get somebody, or many people, into trouble faces various risks. Although the company can and should try to protect the whistleblower from retaliation, there is always some uncertainty. If the complaint is against a supervisor, the whistleblower runs an even bigger risk that the action could affect his or her job. So it's not surprising that many whistleblowers come forward on the condition of anonymity.

For this reason, companies must provide whistleblower complaint mechanisms for employees to submit anonymous complaints and show that they take allegations seriously. Every allegation, whether reported anonymously or otherwise, should be investigated, at least to the extent that the company determines whether or not a full-fledged investigation should be conducted. Anyone who documents wrongdoing internally deserves to be updated on the status of their whistleblowing report to reassure them that their allegations are taken seriously.

Sometimes communicating with a whistleblower can be challenging. How do you determine the identity of an anonymous whistleblower? And should you? But in many cases the person's identity needs to be revealed, so investigators may conduct a thorough whistleblower investigation.

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How Are Whistleblowers Protected for Anonymity?

Whistleblowers who come forward, anonymously or otherwise, often request that their identities be concealed. There are just too many headaches involved in continuing to work in an environment in which they are known to have been a "snitch". But can a company agree to keep the person's identity a secret and still conduct a thorough and fair investigation? Unfortunately, the answer may be no.

"The company can’t promise that the whistleblower's identity won’t be revealed because there are certain instances in which it may need to be revealed," says Lisa Noller, litigation partner with Foley and Lardner LLP. "For example, if the company is cooperating with the government, then the whistleblower’s identity may need to be disclosed because the government requires it."

And then there's the chance that others in the company may be able to guess the whistleblower's identity. "You might need to disclose detail about the nature of the complaint, for example in an SEC filing, that somebody will be able to figure out who the whistleblower is," says Noller.

Ensuring Confidentiality in Whistleblower Investigations: What You Need to Know

Investigators need to be careful when reassuring whistleblowers so they don't give them a false sense of security.

"I think that best advice to companies is to tell them that they should not over-promise and under-deliver," says Noller. "However, I think you may tell a whistleblower, consistent with the law and reporting requirements, that you will keep his or her identity confidential to the extent practicable and permitted by law," she says.

The company then needs to follow through on that reassurance and make it clear that retaliation is not tolerated. Show whistleblowers and the rest of the company that anonymous employee reporting of misconduct is important and that whistleblowers will be treated fairly and given whatever protection is possible. It will go a long way towards ensuring that the next potential whistleblower comes forward instead of sweeping concerns under the rug.

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Understanding the Whistleblower Investigation Process

The whistleblower investigation process consists of several careful steps to reach a conclusion.

Step 1: Filing a Report:

This initial stage occurs when the whistleblower submits their report through a hotline or other reporting mechanism. They may choose to remain anonymous if the mechanism allows. They should include as much information as possible about the incident they’re reporting and speak up soon after the incident occurs, if they feel safe to do so.

Step 2: Review and Triage:

During this stage, the investigative team receives the report and reviews it. If it has merit, they will then decide on next steps. Some reports don’t require a formal investigation, so the team will put other resolution steps into motion (e.g., informal conflict resolution between coworkers). If the report does require an investigation, they will triage it according to severity and risk level to both the reporter and the organization and put it in their investigation queue.

Step 3: Evidence Collection and Interviews:

In this stage of a whistleblower investigation, investigators will collect information that will help them resolve the case. This includes gathering supporting documents and media files, as well as interviewing the reporter (if possible), the accused person, and any witnesses.

Step 4: Case Resolution:

After gathering evidence, the investigative team will determine an outcome. They usually share their process and findings in a final investigation report and informally to the involved parties (including the whistleblower, if possible). They will then recommend and/or carry out corrective and preventive actions to formally resolve the case.

Anonymity can provide whistleblowers a feeling of safety from retaliation, especially if they are accusing a high-ranking employee or are the victim of something like sexual assault. However, remaining anonymous can make the investigation harder if investigators can’t communicate with the whistleblower to follow up and gather more details. Many countries now offer legal protections for whistleblowers, which should encourage employees to speak up more freely.

How Long Does a Whistleblower Case Take? Timeline & Expectations

Each whistleblower investigation takes a different amount of time based on its complexity, incident type, and risk to the reporter and the organization. For example, reports of a tripping hazard in a hallway can be resolved quickly and without an investigation by simply removing the hazard. However, a report of a suspected employee fraud scheme requires a formal investigation that will require more steps and take longer. The investigative team’s workload can also factor in, especially in smaller organizations.

Here are some estimated times for each investigative step (keeping in mind that some cases may take much longer):

• Review and triage: 1-5 days after report
• Evidence collection and interviews: 3-30 days after report
• Case resolution: 5-60 days after report

Cases that need to involve lawyers or regulatory bodies (such as reports of a potential crime or non-compliance) may take longer, as external counsel is needed. For instance, SEC investigations can take months or even years to resolve, while EEOC investigations can take three to six months.

FAQs:

1. Are whistleblowers anonymous?

Yes, whistleblowers can remain anonymous, but protections vary by jurisdiction. Secure reporting systems and legal safeguards, like the SEC Whistleblower Program, help maintain confidentiality while preventing retaliation.

2. How does anonymous whistleblowing work?

Anonymous whistleblowing allows individuals to report misconduct without revealing their identity. Secure online platforms and third-party reporting services ensure confidentiality, while legal frameworks protect whistleblowers from retaliation during investigations.

3. Can a whistleblower investigation reveal my identity?

Investigators strive to protect whistleblower anonymity, but some cases may require disclosure in legal proceedings. Using secure reporting channels and seeking legal advice can help minimize exposure risks.

4. What is the whistleblower investigation process?

The process involves filing a complaint, evidence review, internal or external investigations, and legal actions if necessary. Agencies like the SEC or corporate compliance teams handle cases based on the nature of the report.

5. How long does a whistleblower case take?

The duration varies based on case complexity, legal reviews, and agency workload. Some investigations resolve in months, while larger cases, especially those involving government agencies, may take years.