As we discussed in our last blog post, an organization that permits or encourages mistreatment reporting to be anonymous invites certain cultural risks and liabilities into the fold.
But cultural issues aren’t the only ones these organizations might face. There are very serious legal risks associated with them, that HR professionals need to be aware of. That said, we didn’t all go to law school, and even the most accomplished autodidact might have trouble grasping the nuances of what’s at play from a legal perspective.
So to help paint a clearer picture, we we’ll turn it over to our friend Jason McCollough, an attorney with the Madison, Wisconsin-based firm AlphaTech Counsel, which specializes in helping early-stage technology companies get their start:
Most employers understand that they have a duty under federal and many states’ laws to take action to investigate complaints of harassment. While specific requirements may vary from state to state, employers generally must conduct a timely investigation of the complaint in good faith. When an employer receives a fact-based complaint from a known individual, the investigation process is usually straightforward.
Even when the complaint is anonymous—that is, you can’t identify the person who made the complaint—there is usually still a course of action that you can take. This post is intended to provide some general ideas on what might be reasonable in responding to an anonymous complaint, but this post is not intended to constitute legal advice. If you are facing this situation, you should consult with a qualified attorney who can analyze your unique facts and recommend an appropriate course of action.
Sometimes, a manager or the HR department receives a “fact-based complaint.” In this case, the person making the complaint is usually known, and the complaint will often contain specific names, dates, a narrative of what happened, and sometimes a list of witnesses. (Speakfully encourages users to document and report issues by providing as many facts as possible when submitting their compliant.) In responding to this type of complaint, employers will want to conduct a timely, impartial investigation of the facts. Your lawyer may advise you to (or that you let them) interview the complainant and alleged harasser, as well as any other witnesses, and then you can take an appropriate course of action based on the facts you uncover. By promptly investigating (and taking action where appropriate), you will not only help minimize, and possibly avoid, potential legal liability, but you will also build trust by demonstrating to the entire workforce that your company takes these complaints seriously.
Anonymous Complaints with Some Facts
Other times, a manager or the HR department receives an “anonymous complaint with facts.” With this type of complaint, the person making the complaint is unknown, but the complaint itself may provide some facts about the alleged harassment. For example, it may describe others involved (e.g., “I saw John put his arm around Sally, and it made me uncomfortable”) or include other details like specific locations (e.g., “in the break room”) or dates and times (e.g., “last Wednesday afternoon”).
In this case, you should analyze the facts with your lawyer to determine the appropriate investigatory response. If the complaint provides specific names, you should interview those individuals. If you know the alleged date and location, you may want to determine if there were any potential witnesses who you could interview. In some cases, the facts included with the anonymous complaint may be detailed enough that the manager or HR personnel can determine the complainant; in that case, talking to the complainant is the obvious place to start. As with fact-based complaints, when the company takes prompt, definitive action to investigate the information available to it, the company builds trust with employees and potential reduces or avoids legal liability if the facts ultimately indicate harassment occurred.
Anonymous Complaints without Actionable Facts
Since a company may be liable for harassment if it knows or should know harassment is occurring, then often the most challenging and frustrating complaint a manager or the HR department can receive is an anonymous complaint where the complainant is not identified and the complaint is general, vague, and void of any other actionable facts. Examples of these complaints include written statements like “The managers here make the employees uncomfortable,” “this place is a hostile work environment,” or “if my boss doesn’t leave me alone and stop flirting with me, I’m going to sue this place!”
In this case, a manager or HR professional may be torn. On the one hand, they know they have a duty to investigate, but on the other hand, they’re thinking, “What am I supposed to do with this?” In many cases—especially when the complaint is isolated to a single instance—the investigative process is quick and easy. Your lawyer may suggest that nothing more than keeping a log of the complaint is needed, especially if the complaint is so vague that no reasonable person would be able to take action on the information provided.
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But when the anonymous complaints are not isolated—where they start to stack up in frequency and nature, becoming indicative of a larger problem—your lawyer will likely advise you to take some action in response. Proactive actions could include activities like company-wide training or pseudo-anonymous surveys to determine if the issue is isolated to a specific department. For instance, if via Speakfully’s HR dashboard, you begin to notice a behavioral trend that is being documented, but not yet formally reported, by numerous employees, your lawyer would more than likely advise you to perform one of these sorts of responses.
Learning about potential harassment occurring within your organization—even in anonymous form—can provide actionable insights to help the company build trust amongst its employees and potentially prevent issues from festering and turning into expensive, complicated lawsuits. If the information is not actionable, then you can probably file it away and watch for trends, taking action when it’s warranted. But if you do find yourself facing a rising trend of anonymous complaints, then you can respond early—hopefully before things ever get out of hand. The goal of these responsive measures is threefold. First, it should stop any harassment that may be occurring within your organization. Second, it should instill trust that management takes the issue seriously, which may then lead to a culture where victims of harassment are comfortable submitting fact-based complaints instead. Third, the proactive measures may help the company further reduce or avoid liability if it is determined that harassment occurred.
Bringing Speakfully to your organization won’t solve all of its cultural issues right off the bat, and won’t automatically ensure you’re clearing all potential legal hurdles from an HR perspective. But by encouraging fact-based reporting—something Speakfully does intuitively and gently—you’re taking massive steps in the right direction. The less anonymity at play, the easier it is to ensure you’re fostering a trusting community and culture and addressing issues swiftly and in compliance with employment law.