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Naming Individuals in Complaints

This concerns naming individuals when filing formal and informal complaints in privacy violations ("do not call", GLBA, etc.).
If you don't want to read about the politics, skip to how to do it


Purpose

The only way for businesses to disregard the law is for their employees to cooperate in doing so. By naming individuals, the people implementing illegal policies may be asked to respond.

As a practical matter, the enforcement agencies will look primarily to the controlling company. This is reflected to the extent of holding client businesses responsible for telemarketing violations made on their behalf.


Index

The reason

The "HOWTO" of Naming Individuals

Foreign Outsourcing

Naming their Lawyers - Attorney-Client Privilege and The Obligation of Candor.
This was worth placing on a separate webpage!



Politics and Issues

In some instances, employees are "pressured" to break the law or possibly be told that their actions are legal. Regardless, "I was only following orders" is not considered a legal excuse.

If word gets out that the government may possibly hold an employee accountable, compliance with privacy laws will be immediate and enthusiastic.

Telemarketing companies have a reputation for locating their boiler rooms in parts of the country where local ethics are such that breaking the law or lying to telemarketing victims on behalf of an employer is acceptable. These same people will find it less acceptable if they understand that they will be held accountable.

Regardless, one can presume that the spectre of enforcement against individuals will have a positive effect on their business ethics.

It is likely that:

  1. the offending business will be held primarily responsible;
  2. the offending business will reimburse and otherwise support the employee; and
  3. the government will be reluctant to apply penalties against the employee
Aren't these people who are marginalized by society (other than because they are telemarketers)?
Yes, but they should still be asked to work within the law. By inferring responsibility to the personnel, one makes it easy for:
  1. those who wish to comply to do so without jeopardizing their job - (They will enthusiastically comply with the law)
  2. those who couldn't care less - (They will even more enthusiastically comply with the law)
  3. those businesses which so desparately wish to comply with the law to inspire their employees to do so.
Moreover, there are people marginalized by society who enthusiastically follow the law. These people are vulnerable to an employer who pressures them to violate the law. If the employee is legitimately concerned about being cited for a violation, the employee has the ideal excuse for fully complying with the law.


The Mechanics

When an enforcement agency receives a complaint naming the individual first, the agency follows its own procedure.
Most agencies have public or non-public procedures for complaints naming individuals along with corporations. Stating the obvious, they either:
1. Proceed with the complaint as submitted;
2. Revise the complaint to name only the business as the party respondant;
3. Revise the complaint to place the business entity first. The effect of this can vary and can be either:
a) keep both parties as parties respondant;
b) effectively dismiss the complaint against the individual; or
c) dismiss the complaint against the individual, but only if the business does not deny responsibility for the individual's actions.

The agency proceeds with its response.
Typically this entails an informal request for an answer. In the case of the business, the answer is handled through routine in-house procedures. When an individual is named, either:
a) both parties are named on the caption of the agency's inquiry, in which case the business must take steps to make sure the employee's response doesn't contradict management's response; or
b) the response of the employee will be returned, along with any discrepencies.

The specific agency response is based on the knowledge that the business is directing the violation; however, this is determined by the degree of frustration of the agency experiences with stonewalling business tactics and businesses which determine that the laws don't apply to them.

The FTC has specific internal rules on how they handle complaints naming individuals (go to sub-§ .5.4,  at pg. 6)

The business will now prepare its response.
Normally the business will be able to deny culpability. One option would be to claim that the violation is error caused by inept employees. (The business procedures designed to encourage such errors of course have nothing to do with it!) But there's a problem..

Since the individual is named, the business has to take the employee's response into consideration before denying culpability. One chain of standard responses is precluded, and any other response will be matched with that of the employee.

A further factor is that the complaint is often a "partial John Doe" complaint, meaning that only partial identities are available to the complainant.
As a result, the business must actively respond to the complaint against the individual. The identities are obstensively withheld for privacy or other purposes, but these reasons don't apply to the agency.
Faced with these issues, there is a disincentive to dispute a legitimate complaint.

Off-Shore Violations - (see next caption)
(In the case of off-shore representatives, the business still needs to consider the tactical effect of stating that the individual is unavailable. In effect the business is in a position of telling the agency it is partially immune. That may or may not present the business in a bad light.)

The effect on employees is of more interest:

If the employee really believes that the employee acted properly, then it's just a matter of responding to the complaint.

If the employee believes that the company is in violation but believes that the company will back him/her up in this, the employee has one more thing to consider -- If the company is willing to break the law or deny responsibility regarding the violation, wouldn't it stand to reason that they would also deny responsibility to the employee? Consider that the most common excuse for a violation is, "We didn't know."

So the result is the same:

A conscientious employee will find it easier to comply.
"I can get in trouble for that."

A sleezy employee will be more likely to comply
"I'm the one who will get in trouble. If the company has the same attitude as me, they'll just blame me for it."

An employee with a jobsworth attitude will find compliance to be the path of least resistance.
"That's what my job's worth."


Foreign Outsourcing

In the case of foreign outsourcing, the named individual is going to be unavailable. In this case, the business would still be liable. The fact that an unavailable employee is named would be of no benefit to them and may work to the business' detriment.

This is a trivial problem because for a business to be active in the US (or any other country), they must have an on-shore presence. It is simply a matter of taking an additional step to identify the local business unit.

In the case of marginal businesses, the business will almost always be local, even though they masquarade as off-shore. Here's where complaints naming individuals is most advantageous! Consider that the enforcement agency will run into a dead end with a hidden or off-shore business entity, in which case the only remaining named parties are the individuals.

In other words, if the business presence is elusive, naming an individual helps the enforcement agency. These names may be the business officers or their legal department.



What to do

First, of course, keep records. (The easy way to do this is with a plain text file on your computer, but whatever is most convenient works best!)

Obviously if you complain about individual action, you must make sure that you describe the individual, and describe with specificity that person's actions.

  1. Determine if the complaint will appear to have merit.
  2. Determine that the complaint in fact has merit.
  3. Determine individuals who were responsible for the infringement. Factors include:
    • You made a specific request (e.g., privacy, "do not call")
    • The person said they'd comply
    • The person said they didn't have to comply
    • The person proceeded with "scripted" items but failed to furfill the request
    • The person demonstrated a lack of effort at compliance
  4. Name the person first in the complaint.
  5. Include the specific part of the complaint which applies to the individual.
    Alternatively state that you don't believe that it is the policy of ____ Company to disregard the law, so the only reason for the complaint was the actions/lack of actions of ____.
  6. Include (or don't include) the business. (If the form only provides space for naming one party, identify the business in your description of the complaint.)
  7. Finally make sure that what you are reporting is the truth. You definitely want to take the "high ground" from an ethical standpoint.

Avoid "cartooney" threats. The idea is to take action and request that the agency hold the personnel accountable for their actions.

Regardless, it can be very effective to simply state that you name individuals in complaints.
"I always name individuals. They're telling us to name individuals in complaints because businesses can't 'get away with it' without the complacency of individuals."

Be sure the individual is a participant.

i.e., don't file against the individual unless "the individual actively or knowingly participated in the deception or violation".


High Pressure

In instances where one runs into an overly-aggressive employee (gatekeeper mentality), it is often the case that they are at the limits of the law. One approach:
Like I said, only do this if the "gatekeeper" seems to be acting over-agressively (i.e., with disregard for privacy or other rights).


Naming Their Attorneys

The complex nature of what Common Law jurisdictions call "attorney-client privilege" inspired me placing this information on a separate webpage - Naming their Lawyers (STILL "UNDER CONSTRUCTION")



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first posted 30 December 2003 ~~ this page rev 3020nbsp;420nbsp;18 ~~ written in WordPerfect 5.1 ~~ copyright 2003 by S. Protigal ~~ Feel free to link to this.