FCPAméricas Blog
Tips on Tips (Four recommendations for responding to FCPA whistleblower information)
1.11.2013
At a time when there are significant incentives for FCPA whistleblowers to take their information directly to the government, it is essential that companies consider the ways they respond to whistleblower tips. Preliminary reports since the Dodd-Frank whistleblower provisions went into place indicate that whistleblowers are generally choosing to go to their companies first with information. FCPAméricas has previously discussed ways that companies can encourage employees to do so. But companies must also take great care to keep whistleblowers engaged after they report so that the government does not ultimately get involved.
Here are four rules of thumb for responding to whistleblower tips.
Focus on the substance, not the source. When questioning a whistleblower, focus not on who told them the information but instead on what was told. The priority should be to understand the details of the tip. When companies begin to inquire into where the information originated, a whistleblower might get uncomfortable. The whistleblower needs to feel that his or her cooperation is truly confidential and that their information is being taken seriously, not doubted. When the company begins to break this trust, the whistleblower might go elsewhere with their information.
Do not rationalize the issue away. Certainly, any company would be happy to conclude quickly that there is nothing to the tip. When tips are supported, it means that the company has a problem on its hands. This means more work is needed to investigate and resolve the matter. Such a dynamic has the potential to cause the general counsel, internal auditor, or compliance officer to try to explain away the issue. Maybe they will claim a payment was a facilitating payment when the facts are still not clear. Maybe they will say that the alleged recipient would never be considered a government official, even though the person works for a state-owned corporation. Such tendencies should be avoided.
Document the conversation. The anti-retaliation protections are a key feature of the whistleblower provisions. When the company knows the identity of the whistleblower and a tip seems credible, it will often interview the individual. It is essential that the company keep a detailed account of this conversation. By doing so, the company helps protect itself from potential retaliation claims.
Loop back to the whistleblower. The Dalai Lama once said, “A lack of transparency results in distrust and a deep sense of insecurity.” This holds true with whistleblowers. Keep them apprised of your progress. Of course, the company will not be able to share every detail with the individual. But the company can certainly show them that progress is being made.
The FCPAméricas blog is not intended to provide legal advice to its readers. The blog entries and posts include only the thoughts, ideas, and impressions of its authors and contributors, and should be considered general information only about the Americas, anti-corruption laws including the U.S. Foreign Corrupt Practices Act, issues related to anti-corruption compliance, and any other matters addressed. Nothing in this publication should be interpreted to constitute legal advice or services of any kind. Furthermore, information found on this blog should not be used as the basis for decisions or actions that may affect your business; instead, companies and businesspeople should seek legal counsel from qualified lawyers regarding anti-corruption laws or any other legal issue. The Editor and the contributors to this blog shall not be responsible for any losses incurred by a reader or a company as a result of information provided in this publication. For more information, please contact Info@MattesonEllisLaw.com.
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© 2013 Matteson Ellis Law, PLLC
Post authored by Matteson Ellis, FCPAméricas Founder & Editor
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January 15th, 2013 at 9:31 am
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