How to Investigate Anonymous Hotline Reports
Many companies have been experiencing a surge in investigations arising out of company hotlines, possibly because employees have been working remotely from home during the coronavirus shutdowns. Investigating hotline complaints – especially anonymous ones – can pose unique challenges. This article offers guidance by way of the following hypothetical:
An anonymous hotline reporter alleges “harassment” by a manager, Bill Smith, but does not provide any additional details. It’s not clear whether the complaint is related to any legally protected characteristic or activity.
You are advising the company. Should the company proceed with an investigation and, if so, how?
The EEOC’s Enforcement Guidance, Vicarious Employer Responsibility for Unlawful Harassment by Supervisors provides, “[a]s soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary.… If a fact-finding investigation is necessary, it should be launched immediately.”
Thus, at a minimum, you should seek additional information to try to learn what this complaint is about. At that point, you can decide how best to proceed.
How should you obtain more information when dealing with an anonymous reporter?
The DFEH’s Workplace Harassment Guide for California Employers (the “Guide”) provides that anonymous complaints should be investigated in the same manner as those in which the complainant identifies him/herself. (Click here for an article discussing the Guide in more detail.) Whenever possible, this initially involves interviewing the complainant.
You should therefore consider different ways to obtain more information about the report. For example:
- Offer to meet with the reporter in person. You can also offer to speak with the reporter by phone and preserve the reporter’s anonymity.
- If the reporter is still concerned and wants to remain anonymous, your hotline may have useful functionality options. For example, many hotlines have a “live chat” feature in which you can communicate with the reporter in real time via text. Alternatively, you might be able to input questions that the reporter can respond to directly in writing, or that the hotline vendor can ask the reporter during his/her next call to the hotline. You also may be able to ask the reporter to upload relevant documents. You should give the reporter a reasonable amount of time to respond to requests for additional information.
- If these efforts do not succeed and the information in the report is general in nature, conduct “environmental” interviews of employees in Smith’s work group. “Environmental” interviews are a process to find out what is happening in the workplace without focusing on a specific complaint or individual. For example, you might ask all the employees in a work group about how Smith interacts with them, or if they have experienced or witnessed any behavior by Smith that has made them uncomfortable in the workplace.
- You also may want to verify whether Smith has any prior history of similar complaints.
As always, you should document your efforts to obtain additional information for posterity.
What should you do if the anonymous reporter does not cooperate?
The method of investigating anonymous complaints in which the reporter does not cooperate will depend on the details provided by the reporter. Depending on how specific the report is, this could include:
- Giving Smith a chance to tell his side of the story. Smith is entitled to know the allegations being made against him and offer his response.
- Interviewing relevant witnesses (e.g., those named by the reporter, or “environmental” witnesses).
- Reviewing relevant documents (e.g., emails and text messages).
- Doing any other work that may be necessary for you to get all the facts. For example, you may consider visiting the work site, reviewing security or other video footage, and/or taking pictures, if appropriate.
Ultimately, you should reach a reasonable and fair conclusion based on the information you collected, reviewed, and analyzed during the investigation.
How should you assess the credibility of the anonymous reporter?
If there is no substantial disagreement about the facts, or if there is direct evidence that resolves the anonymous reporter’s allegations (e.g., a video), you may not need to assess the anonymous reporter’s credibility at all. However, if there is a dispute, such as in the classic “he said/she said,” you will need to assess the credibility of both parties, including (to the extent possible) that of the anonymous reporter.
The Guide describes nine credibility factors:
- Inherent plausibility
- Motive to lie
- Corroboration
- Extent a witness was able to perceive, recollect, or communicate about the matter
- History of honesty/dishonesty
- Habit/consistency
- Inconsistent statements
- Manner of testimony
- Demeanor
In treating anonymous complaints like you would any other, you should try to utilize these credibility factors. However, in the case of an anonymous reporter, some of these credibility factors may be difficult or impossible to assess. For example, if you do not know the anonymous reporter’s identity, you will not be able to assess whether the reporter has a motive to lie, the extent to which the reporter was able to perceive or recollect the incident reported, or the reporter’s history of honesty or dishonesty.
You will also need to exercise caution in utilizing certain credibility factors in the case of an anonymous reporter. For example, if the anonymous reporter initially provided inconsistent statements but did not respond to your attempts to gather additional information, you should consider whether there could be an explanation that would explain these inconsistencies. Similarly, it may not be possible to assess the manner of testimony or demeanor if you do not interact with the anonymous reporter.
Other credibility factors may be more easily applied even in the case of an anonymous reporter. For example, if witnesses corroborate some of the allegations, this would bolster the anonymous reporter’s credibility.
Conclusion
Anonymous complaints can, and should, be investigated in essentially the same manner as those where the complainant’s identity is known. However, it is important to use an investigator who knows how to navigate the unique challenges that can arise in this context in order to meet the company’s obligation to conduct a timely, fair, and thorough investigation.
Wagener Law regularly handles company hotline investigations on a variety of workplace issues and would be delighted to assist you.