Today I want to consider some factors which can lead to employees’ distrust of an internal reporting system. Ryan Hubbs wrote an excellent article entitled “10 Factors Leading to Reporting Mechanism Distrust”.
The guidance and mandates for companies on reporting mechanism reporting are numerous, overlapping and sometimes very broad. There are the US Sentencing Guidelines; regulations under Sarbanes-Oxley (SOX), the Dodd-Frank Act and the 2012 FCPA Guidance. There are international guidelines from the EU, US and London based stock exchanges and even the United Nations deems reporting mechanism reporting a necessary good business practice. Dodd-Frank attempted to strengthen accountability by specifically providing protections for those who come forward as whistle blowers but also allows regulators to respond to misconduct through finding some legal action. While the goal of whistleblowers and reporting mechanisms might be to identify and correct wrongdoing, they do not guarantee success and they do not even guarantee effective and trusting programs.
Trust is a primary factor as to whether an employee will come forward with a concern. Management might try a quick-fix reaction to a messy investigation with more reporting mechanisms, posters or asking a CEO to use compliance training to generally get the word out. Nevertheless, employees view it as a trust issue, and you must have that trust. If an employee chooses not to report and an outside source later discovers misconduct, the organization will certainly be subject to potential financial losses and reputational damage that could have been avoided. If the employee does report, but the culture of trust is lacking or they faced retaliation, up to and including termination, then you have a disgruntled employee who is most likely going to go to the Securities and Exchange Commission.
What are Hubbs’ 10 factors leading to distrust of internal reporting mechanisms? Number one is that employees do not understand the reporting mechanism system. Some the questions include, “who answers the reporting mechanism number? Will they know that I filed a reporting mechanism complaint if I do so anonymously? Will they tell my boss that I've reported a concern? Where does my complaint go and who reviews it?” Employee doubt and uncertainty can impede an employee's decision to report a concern. Transparency is also noted to aid in trust and the more likely an employee is to come forward.
Number two is inadequate reporting mechanism resources and poor reporting program design. Companies can demonstrate their commitment to a reporting mechanism by spending money on well-designed reporting mechanism programs and professionally trained, efficient responders and investigate, fully integrated case management systems and all necessary supported tools. Anything less, will engender employee mistrust.
Number three is the lack of personalization of employee concerns. Utilizing an internal reporting mechanism can be a very personal experience for an employee as the whistleblower might be a victim, the employee could well have witnessed significant wrongdoing. He or she may view using the reporting mechanism as simply taking a personal chance by coming forward and doing the right thing. This means that if an employee only hears a recorded message or an automated response; they may view the entire program as machine-like and indifferent. Having qualified and experienced compliance or investigative professionals who should follow a predesigned investigative protocol, should immediately follow up on reported concerns. Moreover, concerned employees need support and reassurance they have done the right thing and the organization will address their concerns and that they will be protected from retaliation. There should also be a strong written statement against retaliation.
Number four is the improper handling of whistleblower complaints and lack of training of investigators. The mishandling of complaints and poor training of reporting mechanism calls and investigations can cause reporting errors in which the company conducts an inadequate investigation and/or comes to the wrong conclusion. As noted above an investigative protocol coupled with skilled investigators early in the reporting process. Employees who experience mishandled complaints will almost certainly communicate their dissatisfaction with colleagues, and that can certainly destroy reporting mechanism morale.
Number five is the always dicey question of whether management is involved in the reporting mechanism. If local management gets involved early when they may be the problem, or complicit in allowing concerns to go forward or unaddressed. Local HR professionals might also appear to employees to be closely aligned with management, they also might be inadequately trained and show bias or favoritism. To ensure transparency and objectivity, often when it's effective to use a third-party administrator for your reporting mechanism. At the point when concern becomes part of an investigation, the organization can involve management, including internal audit, compliance, legal and HR, depending on the type of complaint.
Number six is too many reporting mechanisms. Your corporate reporting mechanism should be the primary entry point for all concerns regardless of who reports or how companies identify them. Unfortunately, companies also have avenues such as emails, web portals, writing and of course, in person. These can require companies to struggle to determine who owns the proactive and reactive assessments of reporting and responses. Many companies offer reporting mechanisms just beyond the centralized reporting mechanism, but you should have a professionalized, centralized, clearly articulated program that help streamline reporting, increase communication and awareness, and decrease confusion to help build trust.
Number seven is there is too much emphasis placed on reports which must be based solely on “credible complaints. Employees who file fictitious or malicious complaints against companies and colleagues defend pending terminations or to get others into trouble or retaliate for some perceived personal slight.” While some companies attempt to reduce meritless complaints by communicating that employees should only report credible or good-faith complaints, others might go a step further by saying employees could be subject to disciplinary action for filing complaints that are not found to be credible. However, these tactics may well deter employees from reporting any concerns.
Number eight are the twin obstacles of negative incidences and retaliation. If I have had one key theme throughout this series on reporting, and indeed, throughout this month of investigations, it is an absolute prohibition against retaliation. Companies must prevent retaliation. When an employee is mistreated for following the organization's reporting policy, the reporting mechanism can sustain severe damage to its credibility and viability as a safe and secure mechanism. The damage from mismanagement and reprisals is memorialized on the internet and court records or public documents can create a devastating silent, do-not-report culture. Companies must communicate they have a zero tolerance for retaliation and deal with any retaliation swiftly and publicly.
Number nine is the problem of inconsistent outcomes. Companies must demonstrate that consistent and fair outcomes are routine, regardless of people, relationships or scenarios. Employees will learn through the grapevine if the organization delivers fair, consistent discipline, regardless of how confidentially an organization hides such outcomes. Of course, if employees view outcomes as fair, they will be more compelled to report concerns. Employees know that inconsistency equals personal risk.
Finally, number 10 is the time worn adage that actions speak louder than words. Employees critique, judge and evaluate what an organization says about its reporting mechanism reporting program by what it does, rather than what it says. Does it follow policies and procedures as assigned? Does it really have a zero-tolerance policy on retaliation? Are outcomes consistent, fair and appropriate? Does it truly allow employees to report concerns anonymously?
Three Key Takeaways