Anonymous Complaints 101
Many people have a need or desire to keep their identity secret when they submit a complaint to a government agency or individuals. This desire has given rise to a process that is known as the anonymous complaint. An anonymous complaint is one in which an individual shares information with the appropriate authorities but does not disclose his or her name or any other personal identifying information. Generally, a complainant may submit an anonymous complaint to any government office – whether it’s a law enforcement agency , an environmental safety office or an office of an administrative court such as the Equal Employment Opportunity Commission (EEOC). The complainant may submit a written complaint, make a phone call, speak with an officer in person or even leave the complaint on a voice mail system. If an individual is targeted for retaliation, then he or she may be especially hesitant to disclose their name. In situations in which the reputation or safety of the individual may be at risk, submitting the complaint through an attorney who represents the interests of the complainant can help preserve that individual’s anonymity.
Laws around Anonymous Complaints
Many laws and regulations stipulate strict guidelines for submitting and handling anonymous complaints. For example, the Food and Drug Administration (FDA) Fact Sheet on the FDA’s Whistleblower Protection Manual, states that "FDA will protect the confidentiality of the complainant and will not reveal the identity of any individual that submits a complaint regarding voluntary reporting of product defects under section 21 U.S.C. 519." Many of these laws are modeled after the Whistleblower Protection Act of 1989, which was enacted to protect federal whistleblowers in certain non-defense related employment situations. Similar whistleblower protection laws exist for over 40 states. However, these laws and others do not explicitly define or address anonymous complaints or anonymity generally. Even so, courts have generally accepted complaints filed by anonymous complainants.
A notable case involving anonymous complaints is U.S. v. Caronia, No. 07-CR-466 (NGG), 2012 WL 6652498, at *1 (E.D.N.Y. Dec. 20, 2012), which involved a defendant who was charged with, among other things, a violation of the Federal Food, Drug, and Cosmetic Act (FDCA). The court noted that three former employees of the defendant’s company had filed complaints with the FDA that were used by the government to support its claims against the defendant. The Court acknowledged that both parties had deemed the three employees as "potentially credible."
In another noteworthy case, U.S. v. Apotex Corp., 286 F. Supp. 2d 1368 (N.D. Ga. 2003), a company submitted a motion to prevent the government from using its confidential documents and anonymous tips in a criminal investigation. The government introduced anonymous letters to support its claims, while a corporate whistleblower used anonymous tips to bring forward information that supported the company’s defenses. Another example of anonymous complaints supporting a defense can be found in Glimmer, Inc. v. Alpha Network, Inc., No. Civ.A. 05-533JJF, 2006 WL 3500409, at *2 (D. Del. Dec. 1, 2006), where a court held that a party can make an inference that an anonymous tipster is a former employee of the other party, after establishing specific knowledge of the company’s product and development. "The allegations by persons who have first hand knowledge of the operation and future intentions of the company provide strong circumstantial evidence that the information was provided to publicize the product upon which it was working in the hope that someone would seek them out." Id. The Ninth Circuit has taken a somewhat negative view of anonymous complaints in the employment context. In Negron v. California Dep’t of Corrections, No. C 08-0647 CRB, 2008 WL 2050784, at *3 (Cal. N.D. May 13, 2008), the court noted that "[a] Census Bureau study found what was perhaps an unexpected result: ‘Chemists, statisticians, and social scientists were more likely than managers and supervisors to report that they had been on the job less than a year’". Likewise, "[Union workers were more likely than management employees to have less tenure – two or fewer years." Id. The court thus held that a decision to terminate an employee based on anonymous accusations of which there is no substantiation constitutes the adverse employment action and the termination decision was not "caused" by the protected activity. Id. at 5.
Advantages of Anonymous Complaints
One of the most compelling reasons why organizations and companies should consider allowing for anonymous whistleblowing complaints is because anonymous complaints are more likely to be reported than complaints that require the complainant to self-identify. On numerous occasions throughout the history of social culture, whistleblowers have been required to reveal their identities to authorities in the hopes of pursuing justice. However, in many of these cases, the bravery it would have taken for the whistleblower to reveal their identity has deterred them from pursing their goal, resulting in unfathomable corruption and injustice. Therefore, it goes without saying that it is in the best interest of the organization and its employees to permit anonymous complaints of any kind.
Additionally, whistleblowers are more likely to come forward if they are able to submit a complaint anonymously. This has great significance for the organization in the event that the complaint eventually leads to a lawsuit. Without the evidence of a whistleblower, the organization may never be exposed for the corruption they enable and protect. The matter must also be considered when determining the organizational culture in terms of how employees feel about reporting complaints or whistleblowing.
Finally, anonymous complaints have been demonstrated to benefit an organization as a whole. When an organization permits anonymous whistleblowing complaints, it allows employees to feel more confident in asserting their rights regarding workplace safety conditions. This in turn increases productivity and morale. To an extent, this benefit can be seen as a deterrent against the courts, as courts tend to look poorly upon organizations that enforce management that does not allow for anonymous whistleblowing.
Challenges for Anonymous Complaints
There are challenges and concerns with anonymous complaints in a workplace. The first issue is that false complaints can be made anonymously. In fact, anonymous allegations may be the most problematic of all so it is important to approach them with caution. Consider an anonymous complaint from a member of the public regarding a specific incident. While the allegations may or may not be a valid complaint, the fact that they are anonymous and unsubstantiated complicates the investigation. In this type of example, an anonymous complainant may simply feel uncomfortable speaking to the individual involved, but may still be genuinely fearful about an event that occurred. Therefore, the investigator must carefully consider the information that is put forward in these types of complaints. For example, while it may not be appropriate to have a principal speak to the student who makes the complaint, given the nature of the allegations, the principal could approach the student’s teachers and find out if they noticed anything similar to or any corroborating information about the complaint that could help give context to the complaint.
Anonymous complaints may also be problematic if they are related to workplace harassment. It is sometimes the case that a parent may complain about an employee behaving inappropriately towards their child. While some school boards do not believe they can investigate these complaints because they are anonymous, there is some jurisprudence, some in the context of workplace-related harassment, finding that this is not a complete bar.
A challenge with some anonymous complaints is that it is difficult to identify witness who can offer corroborating evidence. However, there are situations where a further investigation may yield corroborating evidence. One example could be greeting cards being sent by an employee who is harassing a co-worker. The investigator may want to consider whether there are other employees who are receiving similar cards. A review of school data is another example for corroborating evidence (for example, discussion reports or discipline reports). If it is a case of alleged inappropriate touching, other incidents may have been reported or discovered.
Of course, while anonymity is warranted in some cases, it is also critical to consider the balance between anonymity and accountability. Complaining anonymously provides little accountability and, although some level of anonymity serves a purpose, it is not a black and white determination. In some cases, an anonymous whistle-blower is just not being accountable for the allegation that he or she is making. It is also important in investigation processes that witnesses and complainants are not anonymous to the investigator/disciplinary authority/institution (i.e. a principal in a school environment). Full knowledge of the complaint will allow the investigator and employee to ask better questions, request return interviews, ask for supporting documentation and corroboration. The employee should not be reverse-engineering their answers back to some unknown accuser. While it’s vital at the outset to avoid naming complainants (in order to avoid retaliation or increased fear), further along in the process, especially for making a final determination, the employee has to know who is complaining. Given that the employee may face discipline, even dismissal on the basis of the allegation, they have the right to know a little more about the person bringing the allegation, even if the identity cannot be revealed.
Best practices for handling Anonymous Complaints
To ensure effective, fair, and legally compliant handling, anonymous complaints should be properly managed from the outset.
Greet the Complaint As Part of the Process
The first step to properly handling an anonymous complaint is to ensure that all complaints—anonymous or otherwise—are taken seriously. Every complaint should be received and acknowledged, and the complainant should be advised that the complaint will be investigated and followed up to the appropriate extent. The complainant can also be told that their cooperation in providing further details will be welcomed and may assist in the investigation.
Document Details
When a complaint is received, it should be promptly documented. The written record should include all information provided by the complainant, including any materials attached to or submitted with the complaint. If a complainant provides only limited information, such as the specific fear of retribution, that concern can and should be put in writing as well. In any case, all information should be preserved for future reference. All communications with the complainant should also be documented and retained.
Promptly Investigate the Complaint
No complaint should be ignored, even if it appears to be trivial upon initial review. Any potentially serious allegation requires a prompt and fair internal investigation, while minor complaints may be resolved informally. Unless local policy or other circumstances require a different approach to anonymous complaints, such complaints should be routed to a person or persons independent from those involved in the complaint , such as a member of the human resources department or a designated employee. Any complaint ostensibly involving another department should be referred to a manager in that department for his or her input.
Communicate Promptly and Often
Providing frequent updates during an ethics investigation is a key to keeping the complainant engaged and helping to build trust. In most cases, a brief response, 1-2 sentences long, is sufficient to state that an investigation is being carried out and the complainant’s concerns are being taken seriously. If the complainant cannot be identified, management should ensure that the original complaint is promptly reviewed and addressed. If needed, assure the complainant that necessary corrective action will be taken to address their issues ripened for follow-up.
Let Employees Know Where to Go
Consider publicizing, both orally and in writing, the procedures for reporting anonymous complaints. To the extent practicable, line managers should let employees know that anonymous complaints are being funneled to a dedicated email address, phone number, or office. By so doing, the organization assures employees that their complaints are being received and that anonymous complaints are as welcome as those made personally or directly.
Use Technology and Self-Audits
Employ information technology to assist in receiving, routing, investigating, resolving and communicating about complaints. For example, some organizations (in particular, those providing financial services) have developed online tools to facilitate the submission of anonymous complaints, including a platform for documenting investigations and complaints. In addition, it is always helpful to periodically review and update internal procedures and guidelines for handling complaints. These procedures and guidelines should be updated regularly and be available—in non-proprietary terms—for all employees to review.
Examples of Anonymous Complaints
The question of when anonymous complaints should be entitled to protections has been tested in several notable cases.
In 1992, the National Labor Relations Board (NLRB) ruled on whether protection extends to anonymous complaints filed by individuals who do not identify themselves. In that case, a cleaver operator was accused of carrying tuna into the restroom and eating it during working hours. Someone filed and signed a grievance, but did not provide proper identification, as required by the company’s policy. Because the filing party allegedly had no knowledge of the incident, the grievance was dismissed. The NLRB found that the company did not violate the National Labor Relations Act in dismissing a grievance that did not identify the filer: "In no sense did [the employer’s] actions chill employees in exercising their right under the Act to submit a grievance and seek the redress of a wrong." (San Diego Electric Carriages, 299 NLRB 1090).
While anonymous grievances arguably can be dismissed under company policy, anonymous complaints of other types may not be as easy to decline. For instance, a complaint alleging sexual harassment will still need to be reviewed carefully. By the time the case reached the California Supreme Court — in the matter of Green v. Ralee Engineering — there was already some question as to whether anonymous complaints should be given less weight than those that identify an accuser. In this state court case, a supervisor complained that his superior had sexually harassed him, and he filed a grievance with the company. The employer’s reaction was swift: It fired the superior, closed the supervisor’s grievance, and, without conducting an investigation, stated that the matter was considered resolved. When the supervisor learned that the employee had not been interviewed before the investigation was closed, he alleged that this was a breach of the company’s own collective bargaining agreement. The court found that the company’s action violated the employer’s duty of fair representation because, when a union acts to avoid what it determines to be meritless grievances, it is expected to "exercise reasonable judgment" as to how much investigation is required. In this case, the company did not make any attempt to investigate when the complaint was filed and, therefore, closed the grievance improperly.
Both cases show how anonymous complaints should be handled. The employer in the latter case would have benefited from a step-by-step investigation; depending on the outcome, it could have handled the filed anonymous complaint in another way to avoid being found in violation of an agreement.
Future of Anonymous Complaints
The future for anonymous complaints will likely see a marked increase in acceptance, especially for the reporting of breaches under GDPR. The ICO have already stated that anonymous complaint systems will be accepted as the first step in a whistleblowing process. There are many advantages to whistleblower schemes such as this, where those who feel they may be victimised or retaliated against can cough up misconduct without fear of reprisal. In order to limit the effects of malicious anonymous complaints, the scheme would need to identify the employee and track their usage of the system. This data, whilst anonymised , would then be used to tease out whether patterns emerge and ensure that no employee can continuously submit malicious complaints. Although live buys can identify the person behind an anonymous complaint, anonymous complaints are unlikely to be published on the website. In the United States, the trend has been that information received through anonymous complaints, such as by the SEC’s whistleblower program, has been accepted in evidence and no further verification of the complaint or of the identity of the submitter will be considered; the information is taken as fact. This finding reflects a shift in the view of the courts towards respecting the right to privacy, rather than enforcing transparency at all costs.