When Whistle-Blowers Get Personal

By Paul Falcone Jun 29, 2012
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Most companies grant employees the discretion to escalate matters anonymously, but this approach may inadvertently open up a Pandora’s box of unfounded allegations and allow workers to engage in character attacks with apparent impunity. Likewise, because employees have become savvy to the whistle-blower protections contained in many companies’ written policies, they figure that engaging in the proverbial pre-emptive strike—“I’ll complain about my boss’s conduct before she has a chance to complain about my job performance”—could provide them with protection in the form of a possible retaliation charge against the company should their managers later attempt to dismiss, lay off or otherwise discipline them.

But how do you, as a leader, handle it when you suspect that the nameless voice behind an anonymous complaint is actually engaging in character assassination against a targeted supervisor? Finding that delicate balance between honoring the privacy rights of a complainant but refusing to tolerate mean-spirited slander toward an alleged wrongdoer—often the employee’s supervisor—places every department head and HR manager in an ethical quandary. It also places the company in a compromising legal position. Handling these types of workplace problems directly and appropriately poses exceptional challenges to even the most confident leaders, so an approach that combines legal guidance and common sense will work best.

Character Assassins

“Unfortunately, people can sometimes be particularly mean-spirited toward their intended target, especially if it has to do with principle,” says Richard Falcone, senior litigation partner in the Los Angeles office of Littler Mendelson. “Once people are acting ‘on principle,’ it’s very difficult to help them see things objectively.”

In cases where people believe their jobs are at risk or they otherwise suffer from an entitlement mentality or victim syndrome, those attacks could hit very close to home and feel personal.

For instance, an allegation that someone is embezzling company funds or engaging in timecard fraud is fairly easy to investigate and verify. But what about an e-mail from an unknown address alleging that a supervisor is having an affair with his subordinate? And what if that anonymous complaint surfaces at the same time the supervisor’s wife receives an anonymous note alleging that her husband is cheating on her with that same subordinate? The supervisor denies the affair and any harassment.

“It’s a classic situation of the gun being pointed at the employer’s head from two different directions—the anonymous complainant who’s arguing discrimination, harassment and potential retaliation on the one hand with the supervisor threatening a defamation lawsuit on the other,” Falcone says.

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After an HR professional has completed an investigation and if a claim is deemed to have no merit, leaders shouldn’t just sweep the incident under the rug. They should address the matter openly to head off any defamation claims, to support the maligned supervisor and to send a signal that filing a false accusation is dangerous.

“Claims raised can be exaggerated, taken out of context or appear to assign some form of ill intention to the supervisor’s actions where none was intended,” Falcone says.

Address the matter as follows: First, check with counsel to ensure that you’re getting appropriate legal advice to help you line up your arguments for addressing the group. Second, ensure that the wronged supervisor supports your intentions of addressing the matter openly with the rest of the team and in that supervisor’s presence.

You could then set the stage for an “investigational wrap-up” meeting:

“While I’m not planning on going into detail about the investigation that HR has been conducting for the past two days, I want you all to know that we’ve fulfilled our commitment as a responsible employer to conduct a thorough investigation in a timely manner and reach a reasonable conclusion.

“However, I’m not comfortable just closing out this investigation without addressing the elephant in the room. We don’t know who filed the original allegation, and that’s fine. But I want to remind you all that real damage can be done to someone’s career and personal life when anonymous complaints are made behind the scenes with apparent impunity.

“I’m very disappointed in how this matter was escalated. The allegations appear to have been grossly exaggerated, the witnesses couldn’t support the allegations, and this felt like a very personal attack against John. John, I want to apologize to you on behalf of the team for what occurred here. I think you deserve to hear that publicly, and I’m very sorry.

“If you have legitimate issues and concerns, feel free to raise them openly or file your complaints anonymously—but please remember that there are real people whose careers may be placed at risk. This investigation is officially closed.”

With this public apology to the wronged supervisor and an opportunity to reset group expectations, you stand the greatest chance of healing the wound while enforcing your company’s escalation policy and whistle-blower protections. Addressing the matter openly and honestly will provide a healing touch that will go a long way in preventing future whimsical attacks from behind an anonymous curtain while allowing your team to rebuild fractured relationships and reinstitute a sense of healthy camaraderie.

Paul Falcone is an HR executive and author of 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination (AMACOM/SHRM, 2010).

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