Workplace Investigations and the Process of Investigation

1. Workplace Investigations and the Process of Investigation

2. “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.”

3. Pre-Course Self-test One of the first legal issues a fact-finder must confront when considering a search of an employee’s personal work area or desk is? Weingarten 1st Amendment Just Cause The reasonable expectation of privacy

4. Pre-Course Self-test One of the first legal issues a fact-finder must confront when considering a search of an employee’s personal work area or desk is? Weingarten 1st Amendment Just Cause The reasonable expectation of privacy

5. Pre-Course Self-test Investigative written notes are considered? Admissible if signed by the note-taker Rarely admissible and as such, they are not necessary to retain Admissible even when unreadable None of the above

6. Pre-Course Self-test Investigative written notes are considered? Admissible if signed by the note-taker Rarely admissible and as such, they are not necessary to retain Admissible even when unreadable None of the above

7. Pre-Course Self-test The most common mistake made by investigators is? Not taking a statement from every witness Over-investigating and attempting to achieve a standard of proof which is unachievable Failing to prepare a proper final report with recommendations

8. Pre-Course Self-test The most common mistake made by investigators is? Not taking a statement from every witness Over-investigating and attempting to achieve a standard of proof which is unachievable Failing to prepare a proper final report with recommendations

9. Pre-Course Self-test Which standard of proof must be achieved in order to justify the discipline of an employee? Beyond a reasonable doubt Preponderance of the evidence Good faith investigation/reasonable conclusion

10. Pre-Course Self-test Which standard of proof must be achieved in order to justify the discipline of an employee? Beyond a reasonable doubt Preponderance of the evidence Good faith investigation/reasonable conclusion

11. Beyond a reasonable doubt Preponderance of the evidence Good faith investigation Standard of Proof

12. Objectives Examine significant trends in workplace crime and ethical investigations Examine the different forms of investigations and how they are best used Learn how to avoid common legal traps and obtain the highest return on investment from every investigation

13. The Cost of Crime • Decreased productivity and morale • Increased consumption of benefits • Decreased competitiveness and diminished profits • Damaged reputations!

14. Crime Defined • Property crimes • Non-property crimes • Violent crimes

15. Property Crimes • Theft • Embezzlement • Burglary • Robbery

16. Non-Property Crimes Harassment Discrimination Insurance fraud Substance abuse Ethics violations

17. Violent Crimes • Assault • Battery • Rape • Murder • Terrorism

18. Employer Obligations • Moral • Statutory • Financial

19. Significant Trends Greater use of technology Expansion of employee rights More litigious employees Less room for error

21. Original

22. Successful Investigations • Management commitment • Meaningful objectives • Well conceived strategy • Properly pooled resources and expertise • Lawful execution

23. Your Objectives True nature and scope of the problem Who is involved and why Gather information in such a fashion as to allow disciplinary and/or corrective action Least disruptive to operation Provide a return on investment

24. The Seven Phases Assessment Preparation and planning Information gathering Verification and analysis Decision-making Disbursement of discipline and/or corrective action Prevention and education

25. The Eight Methods • Physical surveillance • Electronic surveillance • Research and audit • Forensic analysis • Undercover • Interviews and interrogation • Search warrant/Grand Jury

26. Physical Surveillance • Easy • Relatively inexpensive • Limited applications • Limited evidentiary value • Should be considered only corroborative

27. Electronic Surveillance • Easy • Relatively inexpensive • Significant legal considerations • Limited evidentiary value • Should be consideredonly corroborative

28. Research and Audit… • Criminal indices • Civil indices • Department of Motor Vehicles • Real estate • Fictitious name filings • Corporations

29. Research and Audit Personnel files Time cards and attendance records Production and quality reports Inventory records Prior investigations and accident reports

30. Forensic Analysis • Easy • Comparatively expensive • Subject to evidentiary challenges • Easily misused or misinterpreted

31. Undercover • Interactive • Allows the collection of physical evidence and witness testimony • Not possible in all environments • Requires close supervision • Lengthy and costly

32. Interviews Logistically simple Interactive High evidentiary value High corroborative value Provide some element of due process Fraught with legal risks

33. Interviews • Follow organizational policy • Determine why subject was truthful • Determine who else involved • Keep door open for future interview • Document, document, document

34. Interview Tips Always treat subject with respect and dignity Do not hold subject against his/her will Do not offer immunity Do not make promises you can not keep Use a witness

35. Never • Misrepresent self or purpose • Threaten or coerce • Minimize the consequences • Exaggerate the quality of your proof

36. More Tips • Create an evidence file • Request and retain originals • Secure original and work with copies • Properly identify, but do not mark or alter • Keep in safe place

37. Litigation Avoidance Follow policy Document findings and determinations Treat all people with respect and dignity Do not discuss with others that haven’t a need to know

38. Prevention Strategy • Pre-employment screening • Effective open-door policy • Effective security plan • Effective policies against violence • Anonymous communication systems • Education and training

39. Conclusion Plan ahead and follow company policies Document results Recognize limitations Obey the law and keep others informed Treat all people with respect and dignity