works with children, including volunteers
•
September 11, 2001, resulted in heightened security and required iden-
tity verification
Internal Investigations and Controls
151
•
The Enron scandal increased scrutiny of corporate executives, officers,
and directors
•
Increasing use of inflated and fraudulent reśumeś and applications
•
New federal and state laws requiring background checks for certain jobs,
for example, armored car employees
•
The Information Age added to the increase in checks because informa-
tion is now available through many computer databases
Privacy legislation coupled with fair employment laws drastically limit what
can be asked on employment application forms. The following federal leg-
islation relates directly to hiring and dealing with employees:
•
Title VII of the Civil Rights Act of 1964
•
Pregnancy Discrimination Act of 1978
•
Executive Order 11246 (Affirmative Action)
•
Age Discrimination in Employment Act of 1967
•
National Labor Relations Act
•
Rehabilitation Act of 1973
•
Vietnam Era Veterans’ Readjustment Assistance Act of 1974
•
Fair Labor Standards Act of 1938 (Wage and Hour Law)
•
Federal Wage Garnishment Law
•
Occupational Safety and Health Act of 1970
•
Immigration Reform and Control Act of 1986
•
Employee Polygraph Protection Act of 1988
•
Consolidated Omnibus Reconciliation Act of 1985 (COBRA)
•
Worker Adjustment and Retraining Notification Act (Plant Closing Law)
•
EEOC Sexual Harassment Guidelines
•
Americans with Disabilities Act of 1990 (for a more complete list, see
Table 12.1)
•
Family Educational Rights and Privacy Act (FERPA)
•
Bankruptcy Act
•
Fair Credit Reporting Act (FCRA)
•
Equal Pay Act 1963
•
Privacy Act of 1976
In some respects, these regulations had a streamlining effect, eliminating
irrelevant questions and confining questions exclusively to those matters
relating to the job applied for. The subtler kinds of discrimination on the
basis of age, sex, and national origin have been largely eliminated from
the employment process. In making these changes to protect the applicant,
state and federal laws have created new dilemmas for employers and their
security staffs.
152
Table 12.1 Who is Protected, Who is Affected? Federally Covered Employers and Protected Classes Origin/
Federal
Legislation
Race/Color National
Ancestry Sex
Religion
Age
Disabled Union Covered Employers
Agency
The
Title VII Civil
X
X
X
X
Employers with 15 +
EEOC
Art
Rights Act
EEs; unions,
of
Investigati
employment agencies
Equal Pay Act (EPA)
X
Minimum wage law
EEOC
as amended
coverage
ve
(“administrative
Interviewin
employees” not
exempted)
aAge Discrimination
X
40 +
20 + EEs (unions with 25 +
EEOC
g
in Employment
members), employment
Act (ADEA)
agencies
Age Discrimination
X
Receives federal money
EEOC
Act of 1975 (ADA)
Executive Order
X
X
X
X
X
All federal contractors
OFCCP
11246.11141
and subcontractors
Title VI Civil
X
X
X
X
Federally-assisted
Funding
Rights Act
program or activity—
Agency
public schools and
and EEOC
colleges also covered by
Title IX
Rehabilitation
X
Receives federal money:
OFCCP
Act of 1973
federal contractor,
$2,500 +
National Labor
X
X
X
X
X
X
ER in interstate
NLRB
Relations Act (NLRA)
commerce
Civil Rights Act of
X
All employers
Courts
1866
Civil Rights Act of
X
X
X
Private employers usually
EEOC
1871
not covered
Revenue Sharing
X
X
X X
X
X
State and local
OFCCP
Act of 1972
governments that receive
federal revenue sharing
funds
Education
X
Educational institutions
Dept. of
Amendments of
receiving federal financial
Education
Internal
1972 Title IX
assistance
Vietnam Era Vets
X
Government
OFCCP
Investigations
Readjustment
contractors—$10,000 +
Act—1974
Pregnancy
X
All employers 15 + EEs
EEOC-
Discrimination
OFCCP
and
Act of 1978
Controls
Continued
153
154
Table 12.1 Who is Protected, Who is Affected? Federally Covered Employers and Protected Classes—cont'd Origin/
Federal
Legislation
Race/Color National
Ancestry Sex
Religion
Age
Disabled Union Covered Employers
Agency
The
Fair Labor Standards
Includes
Art
Act
minimum
of
wage law
Investigati
and equal
pay act with
ve
DOL
Interviewin
complex
method of
coverage
g
Rehabilitation
X
Receives federal money:
OFCCP
Act of 1973
federal contrac
tor,
$2,500 +
Americans with
X
Covers employers with
EEOC
Disabilities Act of 1990
15 or more employees
Federal Privacy
Federal agencies only
Act of 1976
Freedom of
Federal agencies only
Information Act
Family Educational
Schools, colleges, and
Rights and Privacy Act
universities, federally
assisted
Immigration Reform
All employers
INS
Act of 1986
EE = Employee; ER = Employer; EEOC = Equal Employment Opportunity Commission; OFCCP = Office Federal Contract Compliance Programs; NLRB = National Labor Relations Board; DOL = Department of Labor; INS = Immigration and Naturalization Service.
Applies to federal agencies, contractors, or assisted programs only.
aMandatory retirement eliminated except in special circumstances.
Internal Investigations and Controls
155
Various federal and state laws prohibit criminal justice agencies (police
departments, courts, and correctional institutions) from providing informa-
tion on certain criminal cases to noncriminal justice agencies (for example,
private security firms or human resources departments). The Fair Credit
Reporting Act requires that a job applicant must give written consent to
any credit bureau inquiry.
All states have some type of privacy legislation meeting the guidelines set
forth in the Federal Privacy Act of 1976. The most controversial portion of
the Act states “that information shall only be used for law enforcement and
criminal justice and other lawful purposes.” The crux of the issue is the way
that “other lawful purposes” is defined. Does this meaning include human
resources departments and private security operations? The verdict is mixed.
Human resources, security, and loss-prevention operations must be aware
of the interpretation of the privacy legislation in each state in which they
operate. Recent legislation regarding the Department of Homeland Secu-
rity has allowed for greater access of government agencies and private
security firms to criminal histories, financial records and medical records.
Understandably, there is some confusion regarding the rules governing
employment screening. In spite of such confusion, the pre-employment
inquiry remains one of the most useful security tools employers can use
to shortstop employee dishonesty and profit drains. Security management
should consult with legal counsel to determine which laws relate to their
locality and establish firm and precise policies regarding employment appli-
cations and hiring practices. An employer should be as familiar as possible
with the federal Fair Credit Reporting Act (FCRA), which governs what
employers must do when contracting record checks with third parties.
Generally speaking, look for and be wary of applicants who:
•
Show signs of instability in personal relations
•
Lack job stability; a job hopper does not make a good job candidate
•
Show a declining salary history or are taking a cut in pay from the
previous job
•
Show unexplained gaps in employment history
•
Are clearly overqualified
•
Are unable to recall or are hazy about names of supervisors in the recent
past or who forget their address in the recent past
In general, all or some of the following information might be included in a
background check:
•
Driving records
•
Vehicle registration
156
The Art of Investigative Interviewing
•
Credit reports
•
Criminal records
•
Social Security number
•
Educational records
•
Court records
•
Workers’ compensation
•
Bankruptcy
•
Character references
•
Neighbor interviews
•
Medical records
•
Property ownership
•
Military records
•
•
Drug tests
•
Past employment
•
Personal references
•
Arrest records
•
Sex offense lists
If the job applied for is one that involves handling funds, it is advisable to get the applicant’s consent to make a financial inquiry through a credit bureau.
Be wary if such an inquiry turns up a history of irresponsibility in financial
affairs, such as living beyond one’s means.
Application forms should ask for a chronological listing of all previous
employers in order to provide a list of firms to be contacted for information on the applicant as well as to show continuity of career. Any gaps could indicate a jail term that was “overlooked” in filling out the application. When checking with
previous employers, verify dates on which employment started and terminated.
References submitted by the applicant must be contacted, but they are
apt to be biased. After all, since the person being investigated submitted these references’ names, they are not likely to be negative or hostile. It is important to contact someone—preferably an immediate supervisor—at each previous
job. Such contact should be made by phone or in person.
The usual and easiest system of contact is by letter or, in recent years, by
email, but this leaves much to be desired. The relative impersonality of these
forms of communication, especially one in which a form or evaluation is to
be filled out, can lead to generic and essentially uncommunicative answers.
Because many companies as a matter of policy, stated or implied, are reluc-
tant to give someone a bad reference except in the most extreme circum-
stances, a written reply to a letter will sometimes be misleading.
Internal Investigations and Controls
157
As noted, over the past several years the letter has often been replaced
with an email. However, the pitfalls of the letter apply to email as well,
yet the ease of use and virtually no cost benefits often put this form of ref-
erence check at the top of many budget-conscience managers’ preferred
means of contact.
On the other hand, phone or personal contacts may become consider-
ably more discursive and provide shadings in the tone of voice that can be
important. Even when no further information is forthcoming, this method
may indicate when a more exhaustive investigation is required.
REVIEW QUESTIONS
1. Do you need to have videos to support your claim of a criminal act
being committed prior to conducting your interview?
2. If the employee is successful at stealing, will they continue to steal?
3. Does the size of the company determine whether they will suffer losses
from internal theft?
4. Can anyone fu
lfill the ideal of total honesty?
5. Can anyone recognize a potentially dishonest employee?
6. By looking at a fraud triangle, what 3 elements are usually present
when an employee steals?
7. What do many experts agree is the most important deterrent to inter-
nal theft?
8. What percentage of business failure was reported in 2007 as a result of
employee dishonesty?
9. Is theft of any kind by employees contagious and how does it affect
general employee conduct?
10. How much higher is internal theft compared to external theft?
11. What is the single most key to reducing internal theft?
12. What federal act governs what employers must do when contracting
record checks with third parties?
13
CHAPTER
Investigative Interviewing: One
Hundred Things You Should Know
1. Be confident.
2. Be positive.
3. Research the background of the interviewee.
4. Do online research of all details.
5. Know your purpose.
6. Control your comfort zone.
7. Tailor your demeanor.
8. Admit to mistakes.
9. Eliminate possible answers.
10. Maintain high professional standards.
11. Use the skills you’ve developed.
12. Be ready for denial.
13. Have a conversation.
14. Try to develop something in common with the interviewee when
necessary.
15. Assess the interviewee.
16. Stay calm.
17. Be adversarial when necessary, perhaps if working with another
interviewer.
18. Be adaptable.
19. Know yourself.
20. Know your biases.
21. Expect the unexpected.
22. Control the interview.
23. Properly handle confidential informants.
24. Know the respective laws.
25. Know your company policies.
26. Know the interviewee’s rights.
27. Understand your limits.
28. Help subjects recall events.
159
160
The Art of Investigative Interviewing
29. Use props if you have them.
30. Consider the time of day for your interview.
31. Listen and avoid questions that have a yes-or-no reply.
32. Protect any and all evidence.
33. Maintain confidentiality.
34. Be ready for rationalizations.
35. Be empathetic.
36. Observe, attentive, and concentrate.
37. Be alert.
38. Be mentally prepared.
39. Don’t have a timeframe to end the interview.
40. Confirm simple details.
41. Have necessary documents.
42. Have questions ready and be ready to take a statement.
43. Be flexible and objective.
44. Always assume there is more information.
45. Observe body language and body posture movements.
46. Set baseline for nervousness by asking innocuous questions.
47. Compare and contrast body language when answering innocuous