Kusserow’s Corner: Promoting Hotline Anonymity

Encouraging anonymity with Hotline callers may at first seem like a practice that is counter-intuitive. Many believe the contrary and believe no calls should be accepted without an individual disclosing his or her identity. There are several major drawbacks to this approach:

  1. Regulatory compliance guidance from the HHS Office of Inspector General (OIG), Sentencing Commission, Department of Justice (DOJ), and the Sarbanes-Oxley Act all promote the notion of permitting anonymous reporting. The OIG in their compliance guidance state “At a minimum, comprehensive compliance programs should include…a hotline, to receive complaints, and the adoption of procedures to protect the anonymity of complainants and to protect whistleblowers from retaliation. As such, failing to provide for and encourage anonymity undercuts the perceived effectiveness of the compliance program that should be addressed with a policy on the subject.
  2. Requiring callers to give their identities may discourage people from calling the Hotline. Callers will fear that knowledge of their identity will lead to retribution or retaliation. This, in turn, may result in the caller referring the matter to someone else’s Hotline, calling the media, taking legal action, or simply failing to reveal information that could cause a serious liability to the organization. In general, the more serious the complaint or allegation, the less likely callers will be willing to identify themselves.
  3. Another problem in requiring someone to disclose his or her identity is that the organization will bear the burden of protecting a caller’s identity once it is known. A Hotline call in which the caller discloses his or her identity may provoke litigation or, in some cases, a wrongful discharge lawsuit. For example, if an employee, who has disclosed his or her identity in a Hotline call, is later fired for unrelated reasons, the employee may make allegations of wrongful discharge arising from the fact that the employee made a report to the Hotline. There have been cases where employees have argued that the organization made an insufficient attempt to protect them, resulting in retaliation or retribution. This argument has been made even in cases in which the caller’s identity was known only to Hotline staff and not to management. The employee’s counsel argued that the employee’s supervisor could have figured out who made the call; therefore, the company had a broader, affirmative duty to protect the employee. The company may be in the awkward position of having to prove that the call did not contribute to the firing.
  4. It is usually unnecessary and undesirable to have a caller voluntarily disclose his or her identity. Callers may try to wrap themselves in the cloak of a “whistleblower” to cover up their own misconduct. They may intentionally disclose their identities as callers to the Hotline or to members of their work groups in order to achieve a protective state. They may do this to forestall performance-based or conduct-based actions by trying to invoke the organization’s non-retribution/non-reprisal policy. They know that organizations are bound to protect callers from retaliation. By calling the Hotline, they hope to block the adverse personnel action. This problem has vexed many organizations.

It is good policy to encourage Hotline callers to maintain their anonymity, unless having the identity is essential to act upon a serious allegation. In some cases, it is desirable, and perhaps even necessary, to learn the identity of the caller in order to properly act on the information offered. This means also that there should be a policy for anonymous reporting, developed along with other related hotline policies.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2014 Strategic Management Services, LLC. Published with permission.