Private Investigators and Employee Surveillance

Every Employer wants an environment energized and motivated while being focused and following the rules. This comes naturally to many, but in some situations, these concepts are difficult to follow for certain employees. The behavior one would expect from a responsible adult is unfortunately absent. Everyone is entitled to their good and bad days, but specific patterns of behavior require more attention. If the employee denies inappropriate behavior and you are finding it challenging to prove said behavior exists, it may be appropriate to hire a professional to investigate. We will go over the most common reasons to hire a professional investigator and how properly and ethically conducted surveillance can protect your organization from financial and legal harm.

Worker’s Compensation Fraud

This type of scheme is one of the fastest growing areas of fraud. The National Insurance Crime Bureau has reported that Workers’ Compensation fraud accounts for roughly 25 percent of fraud and costs around $7.2 billion annually. During recessions and times of economic stress, cheating becomes even more rampant. Often employees will take on a second job while they are still collecting disability benefits for injuries which they claim left them unable to work.

Due to the prevalence of worker’s comp fraud, employers and insurance companies will routinely hire private investigators to surveil individuals who have workers’ compensation claims if they suspect the individual is inflating the extent of their injuries.

FMLA Claims and ADA accommodations

Meeting customer needs can be a real challenge when staff is absent under the Family and Medical Leave Act (FMLA) or request extensive accommodations under the Americans with Disabilities Act (ADA). However, a difficult situation can become utterly frustrating when there is reason to believe the employee isn’t really incapacitated or impaired by a medical condition but is instead taking time off work for personal activities or avoiding unwanted job responsibilities.

Surveillance may be appropriate and effective when conducted with care. The following are a few practices to follow when considering hiring a professional to conduct surveillance on an employee who has requested accommodations or leave for medical reasons:

  • Have a good cause. You will waste a lot of time and money conducting surveillance every time an employee claims medical leave. Surveillance should only be considered when you have sufficient reason to suspect the employee is abusing leave or accommodations. An anonymous report may be regarded as a sufficient reason.

  • Hire an experienced professional. Hiring your out of work brother in law because he’s cheap can easily cost you more in future legal fees. Retaining a trained professional means you will get reliable information while avoiding liability for illegitimate methods like trespassing and invading privacy ultimately costing less than defending against claims arising from the bungled efforts of amateurs.

  • Keep an open mind. Be ready to accept the investigator's findings even if they don’t support your belief that the employee in question is “gaming the system.”

  • Be consistent. An employee belonging to a protected class who was investigated may argue discrimination if another outside their protected class who was reportedly abusing leave wasn’t also surveilled. Be prepared to explain why, if you don’t hire an investigator on all cases where abuse is reported.

Non-Compete Violations

Increasingly, more and more employees who have signed non-compete agreements are abusing their company’s investment in their training to build their own competing business and steal clients. Economic damages arising from ignoring the rules of a non-compete can be tremendous and even devastating.

It is common to hear that non-competes are unenforceable. Unless there are unrealistic time, geographical, or secrecy restrictions, they are indeed enforceable, and with sufficient evidence, the costs to investigate and attorney fees may be recoverable.

Non-compete offenses include:

  • Divulging trade secrets

  • Sharing confidential business information

  • Sharing customer lists

  • Sharing special training programs

  • Exploiting existing customer relationships

Why hire a professional?

If you suspect or even have evidence an employee or former employee is breaching the non-compete agreement, which means they’re violating the trust your company had in them, your first impulse may be to contact your attorney or law enforcement. Stopping the offender’s behavior, however, is the opposite of what you should do. Any cease-and-desist letters sent to the violator of the non-compete will notify them that you’re aware of their violations. To avoid penalty or legal action, they’ll stop or even go underground with their efforts. This will make it difficult to obtain evidence to build a legitimate case against them.

Hiring a professional private investigator using a combination of surveillance and other techniques to gather the needed evidence means there is the opportunity not only to stop the activity costing your business money but also for justice and the chance to recover for the economic damages caused by the breach of trust.

Employee Theft and Fraud

Considering the previous categories, the following subjects may seem minor, but can none-the-less cost your company significantly over time.

Time Theft

Few employers will disagree that the smartphone is today’s biggest time thief; texting, social media and videos suck away more productive time than just about anything else but can be managed by policies and attentive supervisors. Employee time theft is considerably more tough to solve. Monitoring an employee’s behavior when they work from home or off-site can be, at the very least, challenging.

Shopping, sleeping, socializing and even working another job when they are supposed to be on company time are all potential activities employees have been caught doing by private investigators hired to monitor them due to suspicion of time theft. The evidence gathered provided appropriate grounds for termination and in some cases even prosecution.

Asset Misuse and Theft

Properly delegating and placing trust others with your company’s physical property, intellectual property, and proprietary information is essential. Entrusting employees with sensitive and private details is at times, a leap of faith. Even if you have done due diligence and hired only the best people you can, employee asset misuse and theft still happens, and it takes several different forms:

  • Using company funds for personal reasons.

  • Use of the company car for personal reasons.

  • Accepting gratuities or bribes from customers or clients in exchange for special services, benefits, treatment.

  • Using the company’s facilities and equipment for carrying out competing business transactions

Employee asset misuse and theft can occur with both direct employees or contractors and can threaten the integrity, credibility, and success of your organization. Maintaining continuous surveillance of every employee to fend off employee asset misuse and theft can be costly and unreasonable. Outsourcing to a private investigator to monitor and investigate an employee suspected of misconduct serves to reveal the offenders while demonstrating to other employees your zero-tolerance policy for asset misuse and theft.