Does your investigative partner ask you enough questions?

Investigators ask a lot of questions. That’s their job. But if your investigative partner isn’t asking you enough questions, or not asking the right questions, you could face some serious consequences.

We spend a lot of our time speaking with our clients and potential clients about the purpose of an investigation. There are two primary reasons:

Legality. Contrary to popular belief, we are not allowed to investigate anything for any reason. There has to be a legally permissible purpose.

Public Perception. Would it be a problem for someone to find out about the investigation? If so, is the investigation worth it?

Is it legal?

Don’t assume that, if your investigative partner is willing to do the work, the investigation is legal. Ultimately, you should operate as though you will be held accountable for any wrongdoings, regardless of who does the work. Ignorance is not an excuse.

Two illustrations:

This potential customer didn’t conduct background checks when hiring employees. An anonymous tip to the human resources department asserted that a back-office employee had spent time in prison for a violent criminal act.

We were the second investigation firm the company had contacted to conduct checks of all current and future employees. It quickly became apparent that the executive who called was unfamiliar with the Fair Credit Reporting Act (FCRA).

Upon further probing, he stated that he had no problem obtaining the proper documentation for future employees, but he wanted to complete the checks on existing employees without their knowledge. The first company he spoke with, he said, advised that, “as long as we are checking public records, you can do it without their consent or knowledge.” This is absolutely false. Conducting these types of checks without the employees’ knowledge and permission is against the law.

The second incident involves a customer who wanted to conduct surveillance on an employee they believed was providing trade secrets to a competitor at clandestine meetings.  

The client was aware that surveillance can be very unpredictable and costly.

To avoid the need for multiple investigators and/or risk losing the subject, the client requested that we covertly place a GPS tracking device on the subject’s vehicle.

Further inquiry revealed that the vehicle was owned by the subject, not the company. While it would have made everyone’s life a lot easier, it is against the law to place a GPS tracker under these circumstances.

The key takeaways:

• An investigator cannot break the law on your behalf, especially if you request it.
• You should make it clear that an investigator should not break the law to get the job done.

In either case, you should assume that you will be liable for the investigator’s actions. You are better off allocating the appropriate resources to get the job done or not doing it at all.

It may be legal, but is it appropriate?

This question is a lot more difficult to answer. A rule of thumb is to ask yourself; would it be a problem if the wrong person found out about this?

If the answer is “yes,” what are the potential consequences? Keep in mind that it does not have to be a legal problem. Public disclosure could affect relationships, impact people’s perception of your organization, or simply make people uncomfortable about doing business with you.

For example, several recent news stories have reported on organizations that hired private investigators to conduct surveillance on individuals of interest. The surveillance was legal, but the organizations were criticized for violating trust and privacy. At least one of those organizations has publicly apologized and promised to make changes, but the damage to its reputation has been done.

Chances are, the right discussion and questions between the organizations and their investigative partners could have changed their decision to conduct surveillance.

Again, if your investigative partner isn’t asking questions and advising you of potential outcomes, you should be wary. While there may not be legal consequences, there may be others that are just as significant.