How To Get The Most Out Of Your Confidential Hotline

• Jurisdiction: United States,Federal
• Law Firm: WhistleB
• Subject Matter: ccounting and Audit, Employment and HR, Privacy, Law Practice Management, Audit, Privacy Protection, Whistleblowing, Human Resource Management
• Author: WhistleB &nbsp
• Published date: 24 March 2023

Takeaways

• The Department of Justice has increased its focus on whether you have an "efficient and trusted mechanism by which employees can anonymously or confidentially report allegations...."
• Having a hotline that no one knows about raises the question "Does the Corporation's Compliance Program Work in Practice?"
• A consistent approach to investigations and institutional justice doesn't happen without planning.
• Not having written investigative policies, procedures, and guidance can lead to unintended consequences and liability.
• The investigative plan should consider disruptions to business operations, individual privacy, potential for reputational harm and the risk of negatively impacting organizational culture.

Organizations are expected to have investigative capabilities, yet the majority do not. In fact, the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) consider confidential reporting and internal investigation to be among the most critical hallmarks of an effective compliance program. A very important initial step toward meeting the government's compliance program expectations is starting a hotline. There is a lot more to this hallmark than retaining a software provider and deploying their platform.

In its publication Evaluation of Corporate Compliance Programs, the DOJ builds on its prior guidance to emphasize the importance of an "efficient and trusted mechanism by which employees can anonymously or confidentially report allegations . . ."

Consistent with other DOJ-published guidance, it is written from the perspective of how prosecutors should go about assessing the compliance programs of defendant companies.

For example, it states: "Prosecutors should assess whether the company's complaint-handling process includes proactive measures to create a workplace atmosphere without fear of retaliation, appropriate processes for the submission of complaints, and processes to protect whistleblowers. Prosecutors should also assess the company's processes for handling investigations of such complaints, including the routing of complaints to proper personnel, timely completion of thorough investigations, and appropriate follow-up and discipline."

The Evaluation of Corporate Compliance Programs document poses many questions about hotlines and investigative processes, including the following.

Does the company have an anonymous reporting mechanism and, if not, why not?

Implementing one or more anonymous reporting mechanisms usually becomes an obvious choice. It has either been pointed out to the organization that they are of a size, complexity, and geographic diversity that it would be appropriate to implement them, or one or more significant matters went unreported because there was no obvious reporting channel. If the organization has decided against implementing reporting mechanisms, it is essential to document the thought process underlying that decision and for the company to be prepared to defend that position.

How is...