Investigations in the Workplace

Eugene F. Ferraro, T.J. MacGinley, Ban Seng Choo

• Publisher: Routledge
• Year: 2012
• eBook ISBN: 9781466555228
• Topic: Business
• Subtopic: Business General
• Index: Business

The process of investigation is dynamic and fluid. The approach must be reasonable and the investigator flexible. However, in order to be successful, every investigation must have a meaningful purpose and be executed ethically and lawfully.Inevitably, employers must invest time, money, and patience to ensure they obtain demonstrable and actionable

Chapter 1

The Process of Investigation

Key Learning Points

1. An investigation is best defined as the logical and intelligent collection of information through inquiry and examination for the purpose of developing evidence so as to solve a problem.

2. Process is the principle driver allowing consistent quality and scalability of one’s workplace investigations.

3. The fact-finder and decision maker should not be one and the same person. Whenever possible, these roles should be held by different people.

4. Most fact-finders have only six methods of investigation available to them when conducting a workplace investigation.

5. One of the most common mistakes made by fact-finders is that they over-investigate. That is, they spend more time and resources than is often necessary.

6. Employers need only to prove that they conducted a good faith investigation and from it came to a reasonable conclusion in order to sustain the decision to discipline an employee.

7. Of the seven phases of investigation, prevention and education is the least appreciated and utilized.

“They say that genius is an infinite capacity for taking pains,” he remarked with a smile. “It’s a very bad definition, but it does apply to detective work.”¹

Sherlock Holmes
A Study in Scarlet, 1887

I. Investigation Terminology

A. Investigation Defined

According to the website www.Word-Origins.com, etymologically, to investigate something is to look for traces or vestiges of it. The word can be traced to the Latin word investīgāre, meaning “search into,” a compound verb based on vestīgāre, meaning track or trace, which was a derivative from vestīgium, meaning footprint.² Ergo, the silly and terribly overused human footprint as a component of the business logos used by many private investigators. However, today, the noun version of the word, investigation, is used for many purposes and means different things to different organizations. For our purposes we will consider the following definition: “An investigation is the systematic and thorough examination and inquiry into something or someone, and the recording of this examination or inquiry in a report.”³ Good, but consider instead: “An investigation is the examination, study, searching, tracking, and gathering of factual information that answers questions or solves problems.”⁴ Better yet might be my definition: “An investigation is the logical and intelligent collection of information through inquiry and examination for the purpose of developing evidence so as to solve a problem.”

Notice that the definition does not contain a reference to prosecution or litigation. That is because a workplace investigation is generally undertaken to learn something. The result is then used to prove or disprove an assertion, claim, or allegation. Thus, prosecution and litigation are a by-product of an investigation, not its purpose. Because of the ability to prove or disprove something, a properly employed workplace investigation can provide many dividends for the employer. In addition to uncovering facts and essential information needed to solve problems, a successful investigation helps restore order. It provides the employer the opportunity to analyze process and system failures and re-engineer them to prevent future problems.

Take for example the common problem of expense account fraud. In its most generic form, the perpetrator misrepresents an expense, claiming it reimbursable when it is in fact not. Of all expenses, travel and entertainment are among the most commonly misrepresented for this purpose. Most organizations have policies and procedures to prevent or detect this problem. Collectively, policies and procedures of this type are called internal controls. Thus, the employee tempted to commit this type of offense must circumvent or defeat the internal controls in place intended to stop him. The investigation that might follow such an event would hopefully identify the internal control failure points exploited by the offender. The investigation then provides two valuable benefits. First, it reveals the identity of the perpetrator and accumulates the evidence necessary to take corrective action against him. Second, it identifies the internal controls that did not work. Once identified, they can be improved so as to hopefully prevent a reoccurrence. Such an investigation therefore solves a problem, the padding of expense reports, but also yields the information necessary to help prevent it from reoccurring in the future.

B. The Subject

It has only been within the last 40 years that those without law enforcement experience have been openly welcomed to conduct workplace investigations. As we will see in Chapter 2, traditionally, most private sector investigators worked first in the public sector. Typically, those with former law enforcement or military investigative experience were the people selected to conduct private sector investigations. For a host of obvious reasons, this choice made sense. These investigators were not only well trained, they were disciplined and knew how to obtain results. With them they brought not only the tools of the trade, but the vernacular that its practitioners used. So while we have recently seen more workplace investigation conducted by those without law enforcement experience, much of the vernacular used by their predecessors remains in use today. As harmless as this may seem, it has its consequences.

Of the claims made by those who have been the focus of a workplace investigation, one of the most common is that the investigation was too harsh and that the investigator(s) that performed it were heavy-handed and inhumane; that is, the investigators acted like cops. So when an investigator conducting a workplace investigation uses the language of cops, the accusation he acted like one is far more credible. In fact isn’t it often possible to identify one’s profession by the way he or she communicates? Consider the occasions you listened to someone or read something they wrote, and based on it, you thought you could correctly guess their profession.

When private sector investigators communicate like public sector investigators, we are conditioned to expect them to behave like them as well. This mistake by the person conducting a workplace investigation may superficially make them appear more professional, but will likely invite challenges that would otherwise not be encountered. Among them might be claims asserting constitutional rights violations, due process violations, and the unlawful use of police-like coercion and intimidation, as well as the entire banquet of companion torts associated with these—all because the well-meaning investigator used the vernacular of another profession.

The first such word I recommend you eliminate from your vocabulary is suspect. The word is harsh and accusatory. Replace it with subject. Throughout the remainder of this book you will see I only use the word subject to describe the investigation’s person of interest. So while I may suspect someone, I never call them the suspect.

Common Mistake # 2

Using law enforcement vernacular instead of the language of business.

Replace police and law enforcement terminology with that which is softer, less harsh. Use the language common to the private sector and be more thoughtful of your customer and how your investigative results will be used.

C. Interview versus Interrogation

Few words used by investigators are more misleading and confusing than interview and interrogation. Without much thought, most people use the words interchangeably. Some workplace investigators think that by using the word interrogation, they and their methods sound more sophisticated. Confusing the matter further, organizations such as the highly regarded firm John E. Reid and Associates, Inc., which teaches The Reid Technique and The Reid Technique of Interviewing, insists that all proper admission seeking processes involving questioning of a subject include both an interview and interrogation component.⁵ Heaping more confusion onto the matter are reference resources like www.USLegal.com, which offer the legal definition of interrogation as

Interrogation is, in criminal law, the process of questions asked by police to a person arrested or suspected to seek answers to a crime. Such person is entitled to be informed of his rights, including right to have counsel present, and the consequences of his answers. If the police fail or neglect to give these warnings, the questions and answers are not admissible in evidence at the trial or hearing of the arrested person.⁶

Suffice it to say there is little agreement as to what these words mean and how they should be used. What appears to be agreeable to most, however, is that an interview seems less structured, less formal, and maybe even less accusatory than an interrogation. And it is precisely because of this presumption that I prefer to use the word interview. I strongly suggest you use it as well.

D. The Suspected Wrongdoer

Following the rationale described above, I also find objection with using the word accused. Given of the word’s root accuse, identifying someone as the accused is accusatory. Not only do people find being accused of something objectionable, the misuse of the word has created the impression that to be accused is to be guilty. This connotation is not useful to the furtherance of most workplace investigations. Because those who are accused tend to be defensive and protective, they are generally less cooperative when interviewed. A kinder, gentler substitute is suspected wrongdoer. Though I will occasionally use the word accused to describe the investigation’s person of interest, I prefer the substitute suspected wrongdoer.

E. Fact-Finders versus Investigators

Like the words suspect, interrogation, and accused, the word investigator can be somewhat coarse. Though I use the word frequently, its misuse can connote that not only has the person who has undertaken the investigation engaged in fact finding, he has also come to some conclusions, possibly regarding guilt or innocence. Consider the presumptive, “The investigators found no evidence of his guilt.” I prefer instead to use the term fact-finder. Fact-finder is more descriptive. Its use is more suggestive of what the investigator is actually doing. So while we may use the word investigator (as I just did above) for the purpose of convenience and brevity, in the conduct of workplace investigations, the preferred descriptor is fact-finder.

F. Decision Maker versus Prosecutor

Equally disagreeable is the word prosecutor. While its use by those routinely involved in workplace investigations is rare, a very descriptive substitute is decision maker. I will use this term throughout this book. Should you read enough of it, you will also discover that I make a strong argument that the fact-finder and decision maker should not be one and the same person. Whenever possible, these roles should be held by different people. Doing so diminishes the appearance (and successful accusation) of bias and preconceived investigatory conclusions. Logically, if the fact-finder is not the decision maker, it is very difficult for him to control the decisions of the decision makers and the punishment of the wrongdoer. Make a practice of using the term decision maker to describe the customer whom the fact-finder serves.

G. Misconduct and Malfeasance

You might have noticed that in the front matter of this book is a page entitled “About the Author.” Had you read it, you might recall that my experience includes “the investigation of employee dishonesty, substance abuse, and criminal activity in the workplace.” This claim is true. However, the reader will note that collectively my experience is in area of investigating employee misconduct and malfeasance. Some of the things investigated are both employee misconduct (and malfeasance) and at the same time crimes. However, as we will discuss in Chapter 2, The Fundamentals of Fact Finding, it is not the criminality that is investigated in these situations, it is the misconduct and malfeasance that is addressed. Furthermore, in the context of our discussion, all crimes involve misconduct, but not all misconduct constitutes a crime. Thus, the workplace fact-finder is better off consistently describing that which he investigates as misconduct or malfeasance and not crimes.

II. The Investigative Process

A. The Elements of a Successful Investigation

My customers commonly ask me what is needed for the investigation they are contemplating to be successful. At the expense of sounding trite, the answer I offer is quite simple. In order to be successful, every workplace investigation requires the following elements:

Management commitment

Meaningful objectives

A well-conceived strategy

Properly pooled resources and expertise

Lawful execution

Let’s now examine each of these critical elements in detail.

1. Management Commitment

Because workplace investigations can be extremely complex and often involve potential litigation, a commitment by management is an essential component if success is to be achieved. From the very beginning, management must be prepared to commit the requisite time, patience, and resources in order to achieve its objectives. It is misleading and dishonest for the individual responsible for driving the investigative process, a person from this point forward we shall refer to as the project manager, to allow the employer (typically his employer or client) to believe anything less. To obtain quick results with little effort or with few resources is often impossible and even reckless. In accepting the assignment, the project manager must be prepared to accept responsibility and communicate honestly with his customer. Only with the proper information and a thorough understanding of the issues and options can the employer make decisions that are sound and appropriate. Anything less will diminish the return on investment (ROI) and invite potential litigation.

a. Time

No two investigations are alike. E...

Table of contents

• Cover
• Title Page
• Copyright
• Disclaimer
• Dedication
• Contents
• Preface
• Acknowledgments
• Introduction
• Author
• 1: The Process of Investigation
• 2: The Fundamentals of Fact-Finding
• 3: The Methods of Investigation
• 4: Project Management and Case Development
• 5: Legal Challenges and Litigation Avoidance*
• 6: Applied Strategies
• 7: Improving Results
• Appendix A: Glossary of Common Investigative Terms and Terminology*
• Appendix B: Common Mistakes
• Appendix C: FCRA Release and Notification
• Appendix D: Sample Surveillance Report
• Appendix E: Confidential Video Surveillance Report
• Appendix F: Sample Investigative Report
• Appendix G: Sample Postinvestigation Observations and Recommendations
• Appendix H: Creating Photographic Evidence Using Conventional Cameras
• Appendix I: Federal Laws Prohibiting Job Discrimination
• Afterword
• Index