Case IQ’s newest version includes pre-set templates, as well as AI-powered copilots for case summarization and translation. Register here to join our live run-down of these new features on June 5th!

#Article

Can Whistleblowers Remain Anonymous During an Investigation?


Can an Informant Remain Anonymous During a Whistleblower Investigation?

Fair treatment, adequate whistleblower protection, and confidentiality in an investigative process are key.

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.

Need a handy reference? Download our free cheat sheet on Handling Anonymous Employee Reporting.

Promising Whistleblower 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.

Stand Behind the Words and Maintain Confidentiality in Whistleblower Investigations

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.

Contact us to learn more about whistleblower investigations.