Even if you’re not a fan of Fox’s successful prime time drama, Empire, you’re likely aware of the name Jussie Smollett by now. Smollett has come under fire in the media and on the internet for his allegedly false account of a racially-motivated attack against him in January, where he alleged two men attempted to strangle him and pour bleach on him. When the story first broke, it was shaping up to be a watershed moment in conversations about how the current administration is affecting race-relations throughout the country. After law enforcement conducted an investigation into his version of events, they’ve released statements that Smollett may have hired the men responsible to help him stage the attack. The case has created divisive new conversations about the United States’ current political climate, but is also prompting career investigators to highlight the importance of thorough and diligent fact-finding in the early stages of any investigation—especially within corporations.
Conducting an investigation with unimpeachable integrity is very similar to building a structure ready to withstand natural disasters. Laying a firm groundwork from the moment of the intake narrative will set an impregnable foundation allowing investigators and support staff to develop strong leads. Investigators must be prepared to ask every question—albeit inane or delicate—in order to ensure they are getting all of the existing, relevant information on the case. This is a process called fact-finding, in which a victim or witness’s statement is documented and entered into record, thereby allowing investigators to thoroughly vet every aspect of their statement. Were they in fact present when the incident took place? Can they accurately describe the alleged perpetrator? Is their story consistent across multiple iterations?
As is the case with any investigation, operatives are racing against the clock. With time, witnesses’ memories fade and witnesses themselves disappear, having relocated or simply left town. As time goes by, evidence is eroded, eventually disappearing, eliminating the leads they might have developed. This is why thorough fact-finding is so important, because investigators who are operating off false or inaccurate leads can lose days or weeks on a case as they chase a lead that will eventually come to no end. While investigators chase those dead leads, the truth about what actually occurred dissolves into obscurity.
Investigators in the Smollett case were able to vet his account of events and discover there may be more to the story than meets the eye. The case was not an isolated incident of allegedly false accusations having major consequences for the parties involved. Regardless of why an individual would make false accusations—whether it was with malice or simply a mistake—these circumstances could occur in many areas of life that could be devastating to both individuals and corporations.
Allegations of misconduct in the workplace immediately come to mind. Whether it’s allegations of theft or sexual harassment, these are the kinds of cases where it’s crucial to have the intake narrative well-documented, with detailed first accounts from all principles on the who, where, when, how, and why in any series of events. Cases regarding misconduct in the workplace have a higher chance of being litigated following the completion of any investigation, usually through civil and wrongful termination lawsuits.
A thorough and diligent private investigator is an invaluable asset to both sides of any investigation, as they are an independent third party and do not have a stake in the outcome of the investigation. Any fact-finding performed by an objective third party stands up to a much higher degree of scrutiny by the opposition. Investigators who are directly employed by any parties in either side have a lot to lose if their employer faces ruin following a lawsuit.
Which brings us to another issue in handling the fact-finding internally. Internal investigators can have a variety of qualifications depending on the corporation’s procedure. It’s true some businesses have licensed investigators on retainer to assist in regular operations, like a business who hires a private investigator to run a background check on a candidate for an upper management position. However, depending on the size of the company, the investigating party in some corporate crises is just the head of Human Resources—who might then be supervising other subordinates to do the legwork. Human Resource managers are invaluable employees who keep businesses running like clockwork, but this does not necessarily qualify them to conduct an investigation in every possible scenario, such as investigations requiring surveillance, undercover work, or properly documenting any evidence that might be recovered. This kind of oversight can have disastrous consequences in the later stages of an investigation, or even in a court of law. The opposition’s case is strengthened when there is evidence an internal investigator has not done their due-diligence.
Corporations of all sizes, trades, and levels of notoriety experience crises throughout their history. When disaster strikes and the stakes are high, it’s important to retain the services of a qualified, licensed, private investigator to begin an investigation. It’s not uncommon for a private investigator to be hired on after internal investigators have already made an attempt. It’s best to start strong, with due-diligent service from a seasoned external investigator to lay an impenetrable foundation for a thorough investigation.
According to the Bureau of Labor Statistics, as of 2010, there were over 34,7000 licensed private investigators operating throughout the United States. The Bureau projects by 2020, the figure will increase twenty percent—resulting in almost 42,000 PIs. Though they may be great in number, you may never spot one, because private investigators have a unique set of skills allowing them to blend in with all walks of society.
When the average person thinks of a private investigator, it often evokes a handful of stereotyped images. Sherlock Holmes is one of the most famous private investigators in the global lexicon—even if he is fictional. In the United States, the film noire genre gave average citizens a staple look for PIs; long, tan trench coats, matching fedora hats, toting cameras with obnoxiously long lenses. More contemporary private sleuths are often thought of as being clad in all black and wearing dark sunglasses. Because these images have permeated American culture, a private investigator fitting any of these descriptions can instantly have their covers blown. With a surge in surveillance culture and the ubiquity of technology and social media, private investigators in the 21st century must modify their investigative methods to adapt to a world where everyone is watching.
Close, But Not Too Close
Even in a world where individuals often have their eyes glued to a screen, it is easier than ever for a private investigator to have their cover blown while in the field. Rise in the saturation of crime coverage in both local and national media has citizens paying attention to their surroundings more than ever, especially when walking to and from their vehicles, and when developing a home security system. Despite concerns about the proverbial “Big Brother,” invading human privacy, the U.S. began to appreciate surveillance technology as a nation after a CCTV camera captured the perpetrators behind the Boston Marathon bombing in the summer of 2013. Law enforcement investigating the tragedy were able to identify Tamerlan and Dzhokhar Tsarnaev in a crowd of thousands, tracking every move they made until the fateful moment when they planted the two homemade pressure-cooker bombs killing three people and injuring hundreds more.
In 2018, the nation saw a rise in law enforcement agencies utilizing drones in their investigations, leading to a new wave of outrage and concern over the violation of privacy and spying. As of December 6th, over 900 law enforcement agencies were reported to use drones in their casework. This heightened awareness in the American population has forced private investigators to redefine their standards for proximity to a subject. Of course, a PI must be close enough to properly observe the subject, and despite their benefits, long camera lenses outside of large events inundated with press can just as likely be the aspect that blows a private investigator’s cover. Being too close to a subject can provoke them to confront the investigator and compromise the entire investigation. This obliterates future opportunities for surveillance and collection of evidence, as the subject will be on high-alert.
Do Your Homework
Prior to a stake-out or any form of field surveillance, private investigators must conduct extensive research about the area in order to move fluidly and avoid detection. Study of local businesses and restaurants can inform a private investigator what the public will be doing in the area, and increase their chances of successfully blending in with a crowd. In order to keep a low profile, PIs must place themselves in the mindset of a local. Places like coffee shops, restaurants, or shopping malls can be ideal places for surveillance, as there are built-in explanations for a person sitting or milling about without purpose for extended periods of time. In situations where this is not the case, it’s important for the investigator to have a method for making themselves appear occupied to cover their presence in an area. Luckily, a person staring at their phone for large blocks of time will raise no alarms with the subject or anyone else. Books, laptops, or accompaniment by an associate for “lunch” are also tried-and-true covers. Many private investigation periodicals recommend conducting as much online research as possible prior to surveillance in order to limit exposure. This means searching public databases, combing news articles, and scraping social media to arm oneself with as much information as possible.
Blending in is the name of the game when you’re a private investigator.
As mentioned above, everyday citizens are more hypervigilant than ever. Subjects with a history in the criminal justice system or with law enforcement will be even more so. As such, the concept of tailing a subject is becoming less effective, resulting in the private investigator “getting made” by their target. Subjects will recognize the same face after multiple sightings, even if it is in a crowd, and strange vehicles parked in the same location for hours at a time are sure to draw suspicion. This is where thorough research with a private investigator’s client can become invaluable. Reconnaissance at the hands of a client can provide the investigator with information allowing them to be more inconspicuous when following a subject from location to location. For example, a spouse suspicious of infidelity can provide the private investigator with their spouse’s daily schedule—what time they wake up, their morning routine, addresses for their employment, frequent lunch locations, extra-curricular activities, the addresses of friends’ homes, the list goes on and on.
Even the most catlike of private investigators will have their covers blown from time to time. That’s why it’s imperative to have a bulletproof cover story. If they’ve done their research, private investigators can be ready with a plausible reason for being in the area, such as house-hunting, shopping, or just being plain lost and in need of direction. These quick explanations will cause a subject to lower their guard and reconsider their suspicion. Just as is the case with any deception, too many details pierce the veil. Being caught with surveillance equipment like cameras or microphones will also require explanation, but in a culture saturated with technology, this can also be easily explained. Camera drawing too much attention? Not if you’re a professional photographer on assignment. Microphone too conspicuous? It’s no longer a stretch to believe the average citizen is a fledgling podcaster or filmmaker recording “foley” or “walla” noise for their project.
As is the case with many professions, media and culture have defined the role of private investigator as one for a man, which often leaves women out of the conversation. However, it could be argued female private investigators have a much better chance of remaining undetected in surveillance. While social code continues to grow and develop, women are often socialized to diminish themselves—to listen, not speak. Follow instead of lead. Men are socialized to be forward and confident in the interest of being some kind of alpha, while women are known to be better at reading a room, picking up on behavioral cues that might inform their investigation, and their perceived gentility improves their chances of a subject or witness trusting and opening up to them. These aspects of our society are the same ones preventing citizens from suspending disbelief when a woman is accused of a violent crime. A woman would never do that. This allows a female private investigator to conduct field surveillance with more freedom.
Technology has spiked over the last 25 years at astronomical proportions, and our population’s socialization has changed dramatically since the invention of social media. While this may have hampered private investigators in their work, the proper tools, flexible strategies, and an analytical mind can get the job done. Whatever a private investigator’s method for remaining inconspicuous in the field, there is no doubt that as society changes, so must their methodology.
In the first decades of the 21st century, we have witnessed advances in technology unprecedented in human history. It was once costly and cumbersome to rely on technology to work for you. The reality today is astonishingly different. To view this article, you likely performed a Google search (or whatever your search engine of choice) and clicked through several links to get here. Advances in technology have made it possible for the search engine to collect the data you spread through the internet and use data to determine what kind of advertising you’ll see in the side banners of the websites you visit. For many in America, our phones and our cameras are the same device. Clunky security systems are a thing of the past, and spy cameras can be made as small as a button. This new reality has a name: surveillance capitalism.
There was a time in the United States where changing your identity was as simple as grabbing what you can carry, hopping a train or hitchhiking to a new location, and introducing yourself to others under a different name. Now, in the world of surveillance capitalism, almost every piece of data you put out in the world, either online or on an official form, will likely be entered into a database where you can be tracked by anyone with the proper clearance. At Lauth Investigations International, we use databases like these every day to perform skip traces, asset searches, and background checks. And then there’s the omnipresent threat of “Big Brother,” a moniker often attributed today to the government agencies, law enforcement, and other surveillance platforms who are constantly watching us on what can only be imagined as an IMAX display of viewing screens. Not to mention the entities that might be surveying us and our information in a manner not exactly above reproach, such as Google, Facebook, and every demonym of foreign hackers who see America’s obsession with its surveillance culture as its Achilles heel.
It’s not all doom and gloom, of course. Humans in America and abroad have reaped the top-tier benefits of surveillance capitalism, such as using the “Find My iPhone” to locate someone who has been reported missing. In the recent high-profile case of a missing young woman from Brooklyn, Iowa, Mollie Tibbetts, law enforcement were able to use data collected by Mollie’s Fitbit to piece together her last hours. This information would eventually lead investigators to the man who is now charged with her first-degree murder. Just this past week, an American couple was saved in Bali after a scooter accident left them both without a way to call local authorities for help. Mikey Lythcott, 36, was able to turn on the roaming data on his cell phone, and with a single bar of service, managed to pen a desperate call for help to his Facebook friends. The United States Consulate in Bali was contacted, and help was sent to the couple’s location. Knowing how well technology can work for us makes it that much more frustrating when we feel it has violated our privacy, such as the aforementioned data-mining that helps target you for specific advertisements.
In addition to impacting the way Americans live their lives, surveillance capitalism has already become a constipator for many well-established areas of the economy, such as journalism, transportation, and—in a fascinating irony—private investigations. While surveillance capitalism has certainly had a significant impact on American culture, there are many who have a misunderstanding of its omniscient power. In a recent article titled, “A Private Investigator on Living in a Surveillance Culture,” a private investigator named Judith Coburn, shared an anecdote where a client completely underestimated the available technology:
“Two lawyers working on a death-penalty appeal once came to see me about working on their case. There had been a murder at a gas station in Oakland 10 years earlier. Police reports from the time indicated that there was a notorious “trap house” where crack addicts were squatting across from the gas station. The lawyers wanted me to find and interview some of those addicts to discover whether they’d seen anything that night. It would be a quick job, they assured me. (Translation: they would pay me chump change.) I could just find them on the Internet. I thought they were kidding. Crack addicts aren’t exactly known for their Internet presence.”
Frustrations like these are rampant in investigation firms across the country, but the advancements in technology do not prevent the use of tried-and-true analog methods, such as old-fashioned tailing surveillance, or telephone ruses without the use of any fancy phone surveillance tech.
The concept of the “right to be forgotten” was forged in the European Union, with individuals voicing their concerns about their inability to “determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.” Given the surveillance tech available to citizens, both private and public, it sounds like an unattainable status for anyone who uses social media, the internet, or walks by a security camera on their way to work every day.
In February, 2018, NPR published an article titled, “Google Has Received 650,000 ‘Right To Be Forgotten’ Requests Since 2014,” detailing the mountain of requests fielded by the multi-national technology company to remove certain URLs from their search results on the condition the content is “inadequate, irrelevant or excessive in relation to the purposes of the processing.” The article goes on to say this means it is up to the discretion of a private company to determine what is in the best interests of the people who use their services, which is a tall-order in a capitalist society. Whether the policy proposed in the EU will ever be universally enforced—both in Europe and around the world—education regarding this newfound culture in which we find ourselves is paramount to protecting yourself and your loved ones from the evils of surveillance capitalism.
Carie McMichael is the Communication and Media Specialist for Lauth Investigations International, a private investigation firm based in Indianapolis, Indiana–delivering proactive and diligent solutions for over 30 years. For more information, please visit our website.
FMLA fraud can devastate a company, but companies should protect the integrity of their investigations to protect themselves.
The Family and Medical Leave Act (FMLA) provides working families balance to their lives when their circumstances take a turn. Whether it’s caring for new life in the household—such as a newborn or a foster child—or to care for an ailing relative, the 1993 act protects employees from being terminated from their jobs when they must take an extended absence for a specific set of reasons. However, abuses of FMLA are extremely common in the American workforce. While suspicions of FMLA abuse should be taken seriously by employers, companies must conduct thorough and unbiased investigations before terminating any employees. Businesses who do not follow protocol can open themselves up to expensive litigation.
In addition to protecting employees from termination during an extended leave, FMLA also requires their various insurance coverage remain in effect. This protection can be guaranteed for up to 12 weeks. According to the Department of Labor:
FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.
FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
- the birth and care of the newborn child of an employee;
- placement with the employee of a child for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- medical leave when the employee is unable to work because of a serious health condition.
The use of FMLA within these guidelines (with some exceptions) is designed to protect hard-working men and women from losing their jobs when their family suddenly requires their attention. Life can change so fast, and employees can rest easy knowing their jobs will be waiting for them when they are able to return in top-performing condition.
According to Charlie Plumb, an attorney who represents clients in all phases of management, abuse of this protection should be investigated, provided the employer has an “honest suspicion.” He goes on to say, “This honest suspicion standard is really intended to protect the employer against a claim they are interfering against FMLA leave and/or being retaliatory.”
A familiar scenario is one where an employee has been granted leave under FMLA for a serious illness or injury. The employer then happens to see posts from the employee on social media having fun out with friends, exercising, or driving. The employer might think, “If they’re well enough to do these things, they must be well enough to work.” While this might sound like an open and shut case from the employer’s point of view, Allen Smith of The Society of Human Resources Management, provides an example where this philosophy proved problematic:
“Joan Casciari, an attorney with Seyfarth Shaw in Chicago, said she handled a case that involved an employee who was put on FMLA leave for depression. The employer later discovered, through surveillance, she was doing Christmas shopping with her family and having a wonderful time. But her doctor confirmed “retail therapy” was consistent with her condition and the fact she could shop did not mean she did not require FMLA leave.”
Luckily for the employer in this anecdote, they did their due diligence and consulted a medical professional who could corroborate the circumstances of her FMLA qualifications. Some employers are far hastier. When employers do not conduct comprehensive and objective investigations into suspicious FMLA claims, they can open themselves up to lawsuits that can be devastatingly expensive and a public relations nightmare.
Vigilance of adherence to the guidelines of FMLA becomes manageable when Human Resource directors keep an eye out for certain patterns of behavior, such as absence patterns, especially when they coincide with non-work events (holidays or something personal that they may have mentioned in the past). Employers should also be suspicious of absences directly contradicting any medical certification in frequency or duration.
Once an employer has a reasonable suspicion of FMLA abuse, they should most certainly investigate. However, internal investigations into these kinds of abuses can be very messy for Human Resources and upper management. The aforementioned scenario involving “retail therapy” could have been a disaster if the company had not done their due diligence. Some employers are not so diligent.
Another scenario involving a maintenance worker at a nursing home and rehabilitation center panned out much differently. The employee in question noticed his superior was exhibiting a pattern of absence he found suspicious. He began reviewing surveillance footage to compare to his own personal log of her comings and goings in order to prove she was abusing company time. After discovering the independent investigation, the superior served a series of performance adjustments to the employee before terminating him. The termination came after the employee had submitted an FMLA request. The court found the dates of his termination tied in too closely with his request for FMLA, allowing the employee to take the case to trial.
Scenarios like these are why Human Resources and management should 1) be vigilant of FMLA abuse, and 2) conduct a thorough and unbiased investigation in order to ensure the company is protected from litigation. Many companies choose to handle investigations internally in order to minimize the amount of exposure. However, internal investigations spearheaded by current members of staff, will not only disrupt daily operations, but can also have negative effects like the case of the nursing home. The employee conducting his own investigation may have had honest suspicions of his superior’s misconduct, but he was certainly not a unbiased source to investigate.
Private investigators are probative routes often overlooked when a company has an internal investigation. There are many circumstances under which companies do not want to give up control over an internal investigation, and a private investigator is the definition of a third-party. However, the objectivity of a private investigator is the number one reason why companies should consider them as an option. The personal biases of the persons involved in the previous examples caused the investigation to go south. As an independent contractor, a private investigator’s only loyalty is to the truth. They are vital to ensuring an investigation is a transparent expedition for the truth. This goes a long way towards protecting a business from subsequent lawsuits or bad press.
When handling an investigation internally, employers are limited to what surveillance they can attain from their own equipment or social media. Private investigators are licensed to track individuals and photograph their activity in public. Persons who fraudulently claim to be out for injury can be photographed doing tasks directly contradicting their FMLA claim, like yardwork or lifting heavy groceries. In addition to tracking their public movements, private investigators may also conduct undercover operations in order to investigate any frauds. They are invaluable in this regard as they are not known to those within the company. Whether you’re looking for an FMLA weekender or an FMLA moonlighter, if someone has made a fraudulent FMLA claim, a private investigator is the most-equipped professional to prove or disprove the suspicion.
Photo by Nicolas Halftermeyer (Own work), via Wikimedia Commons
Today’s private investigators seem to have it pretty easy compared to those of the past — cell phones, security cameras, and social media accounts are often used to obtain evidence for investigations. Gone are the days when private eyes had to flip through physical documents and phone directories, or find the location of someone with an actual map. And now, thanks to the advancements in drone technology, some investigators are opting to do away with physical surveillance.
A drone, or unmanned aerial vehicle (UAV), is a remote controlled aircraft. Although they have been around for several years, flying personal UAVs is a relatively new hobby. These small crafts have been all over the media lately, even earning the endorsement of Martha Stewart. Like Stewart, many people use drones to take beautiful aerial photos. The market for drones is constantly expanding, and tech companies are keeping pace. Some drones can record a live feed, detect heat, or are small enough to fit in the palm of one’s hand. Others can fly four several hours at a time, scanning entire cities in a day.
Due to their discreet nature, private eyes have begun using drones to catch cheating spouses or dishonest employees. Instead of observing someone on foot for hours, investigators can use a drone to get a bird’s eye view of a suspect and collect video evidence. Using a drone is also safer for an investigator and are cheaper than chartering a plane or helicopter. A recent New York Post article featured a private investigator whose specialty is drones. According to the article, the investigator had to use a drone to record evidence of insurance fraud instead of physically surveying the suspect’s property for fear of being shot.
Because of their invasive capabilities, many are questioning the ethics of drone usage, including U.S. Senator Charles Schumer. Schumer recently called for federal regulations on drones, even going as far as proposing a ban on drone usage by private investigators. The idea of anyone being able to purchase a surveillance drone and using it to record whomever and wherever they want is fairly unnerving. The use of personal drones is uncharted territory, filled with flimsy guidelines and little regulation. The Federal Aviation Administration (FAA) prohibits the flying of UAVs for commercial use or payment. Drones are also not permitted to fly over heavily urban areas, and must alert control towers if they fly too close to an airport (FAA Website). Even so, investigators like the one featured in the Post article are still flying their drones.
Should we start expecting to see drones tailing us as we walk down the street? Probably not.
For now, most investigators are opting to stay on the ground and stick to their tried-and-true surveillance techniques. If evidence is gathered illegally, it may lose its value in court, and a private investigator could lose their credibility.