Tips for Avoiding the Hot Seat
How to make sure a good investigation doesn't turn into kindling for another claim.
Over my 14 years of practice, I have countless times heard the explanation of events that led to lawsuits ending with the phrase “One thing led to another and….” However, this saying also has some meaning when performing claims investigations. In particular, think about internal investigations in a company following an employee theft claim. Maybe an investigation is being performed into the theft of trade secrets, or perhaps it’s an investigation into a claim that was submitted on a bank case that involves fraud. Each investigation starts out the same way: a claim is made and the process starts. Where it goes from there is where the fun and fear begins.
If you’ve ever wondered whether you can have too much information, you can. While you may need to know that the bank teller involved in your investigation was undergoing financial difficulties, you probably didn’t need to know that it was because she was undergoing procedures related to pregnancy. Now that you have this information, what you do with it and how it ultimately is used can result in embarrassing and potentially expensive problems.
Now that you know that the teller is pregnant, you cannot simply forget about the information you obtained. Sharing the information with human resources or risk management may sound like a good idea, but it can result in a difficult situation if the teller also was having performance problems. The knowledge imparted may result in a delay of a disciplinary situation or could backfire and result in a pregnancy discrimination claim if they terminate the teller. Now imagine sitting on the stand to testify. Do you want to explain to plaintiff’s counsel why you felt it necessary to include her pregnancy in your report? As mentioned, one thing led to another, and now you are in the hot seat.
Avoiding the hot seat should be every good investigator’s, supervisor’s, and attorney’s goal. No one wants to be asked questions for which you don’t have a good answer. Decide before you place information in a report or correspondence if it is necessary and assists the decision- maker. If you are comfortable with your answer and position, then it probably is necessary and should be included. If you pause or question the relevance of the information, err on the side of caution. You always can include additional information later should it become necessary.
Trying to tell someone to forget what you told them does not work. Some information is and should be off limits, absent a truly remarkable reason. Sexual preference and disability are two that come up most often when thorough investigations occur, especially where surveillance is involved.
Privacy violation claims are ever changing in this world of drones, smartphones, and smart watches. Gone are telephoto lenses and tailing someone when conducting surveillance. Observation often can be done from the comfort of a living room. Many articles have been written and presentations given on the issues of avoiding privacy claims, but think how quickly that privacy claim can morph into a discrimination claim. Documentation of the investigation, events logged, work performed, and information gathered gives a good timeline and can help make the defense of the claim that much easier. Defend your actions from the beginning by performing a good investigation. Preparing your fraud case is like using building blocks; a strong base and story is a key part of the case. The same is true for a claim against an employer for discrimination. Your report does not need to be one of the building blocks. The litigious world in which we live leaves many people looking for a reason to file a lawsuit if they are let go or demoted. Some have valid claims and complaints; others manufacture them out of a sense of entitlement. This is most prevalent in workers’ compensation fraud cases. While the goal of many people is to return to work, some are perfectly happy sitting at home and collecting a check. Investigations often lead to great information, but little is done with it. Some states are more active than others, but the investigation into an individual’s health is fraught with dangers.
The goal of a good investigation is determining fact from fiction and figuring out what happened if you can. What you never want is for a good investigation to turn into kindling for another claim. Do not be the part of the story where one thing led to another—and the investigation led to another lawsuit.