investigator will destroy his credibility and likely his defense.
Tip: Entrapment is not a crime, it is a defense. Only the government or its agents can use entrapment.
2.4.3 A Lower Burden of Proof
As mentioned in Chapter 1, the sophisticated fact finder knows the standard of
proof selected for his investigation will drive his process and significantly determine the resources necessary to obtain the stated objective. In the private sector, when an employment action is sought, the standard of proof should be that of good faith investigation/reasonable conclusion.6 In the public sector, federal and state judicial and administrative tribunal also have established burdens and standards of proof.
Here, burden of proof refers to the duty of a party to present evidence, whereas standard of proof refers to the strength of evidence that must be presented in order to prevail. The elements of proof are the specific facts that must be proved for each cause of action.
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In criminal proceedings, for example, the police must show probable cause to
obtain a search warrant or make an arrest, and prosecutors must establish guilt of an accused beyond a reasonable doubt. Probable cause means evidence sufficient
for a reasonable person to believe a crime has been committed and that the sus-
pect committed it. Guilt beyond a reasonable doubt is the highest standard in the judicial system. It means there is certainty in the minds of jurors and judges. The elements that must be proved are those of the alleged crimes as set forth in the penal codes of the jurisdictions.
In order to prevail in a civil case, the plaintiff must establish fault by only a preponderance of the evidence. This means when the competing evidence of the parties is weighed it must tilt in favor of plaintiffs. If the evidence tilts the other way, the defendants prevail. The elements of proof are those of the alleged wrongful acts (e.g., invasion of privacy, malicious prosecution) as set forth in the judicial decisions and statutes of the jurisdictions in which the cases are brought. To illustrate the difference in these standards of proof, see Figure 2.3.
In a discrimination lawsuit, there is a confusing series of shifting burdens. First, the employee must establish prima facie discrimination, which means he is a member of a protected class and adverse employment action was taken against him.
Second, the company has the option to articulate a legitimate business reason for the alleged adverse employment action. If it does, the burden shifts back to the employee to show by a preponderance of the evidence the reason set forth by the employer is a pretext to hide the alleged discriminatory action. For example, assume an organization fired a female production employee for suspected theft of tools. The employee filed a sex discrimination complaint. She alleged that she was discharged (the adverse employment action) because of her status as a female (membership in a protected group). In response, the company introduced testimonial evidence by co-workers who observed her taking the tools. In response, the employee claimed she borrowed the tools. Further, she introduced evidence that male employees routinely took tools home to work on personal projects and they were never disci-
plined. Was the firing justified or was it really a pretext by the company to cover up discrimination?
These shifting burdens are especially confusing in discrimination claims because they actually do not shift the burden of proof. The burden of proof remains at all times on the plaintiff. These are instead the steps that a judge should go through to decide if the case warrants a trial.
In addition to knowing the burdens and standards of proof necessary when
bringing actions, employers and their fact finders need to know what level of evidence will enable them to successfully defend their conduct. For example, in malicious prosecution lawsuits, fact finders may defend their actions by showing they acted upon probable cause. They and their employers may defend against discrimination complaints by showing they acted for legitimate business reasons. Parties may defend against defamation lawsuits by showing their comments were privileged and the communication had a legitimate business purpose.
The Differences between the Public and Private Sector ◾ 51
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Though sometimes complicated with burdens shifting and standards seeming
to constantly change, one thing is clear: the standard of proof necessary to discipline an employee is lower than that for criminally prosecuting him. This lower standard is a demonstrable advantage of the private sector.
2.5 Significant Trends in the Private Sector
2.5.1 More Sophisticated Crimes and Perpetrators
I began conducting workplace investigations for employers before the advent of
fax machines, cell phones, desktop computers, and the Internet. I recall vividly the office of my first corporate employer, Krout and Schneider, Inc. It was a large West Coast investigation firm and I was a cub investigator haphazardly thrust undercover in a large paper distribution facility. The office was set up newsroom-style with rows of metal desks with no partitions. Atop each desk was an in-basket, an out-basket, and an IBM® electric typewriter. The place was inefficient and noisy.
But, it was a modern office in its day. Several years later, after I had been promoted into management, I can remember arguing with the senior partner about the proposed purchase of the office’s first fax machine. I embraced the technology, but he couldn’t reconcile the need for the instantaneous transmission of documents
when the organization had successfully used messengers and U.S. mail for nearly 50 years. “Besides,” he said, “what could possibly be so important that a client needs it right now?” Can you imagine?
Today’s workplaces, of course, are much different. However, it requires no
leap in intelligence to appreciate the fact that as the workplace becomes a more sophisticated environment, workplace offenses and offenders will become more
sophisticated as well. As employers heap on advanced processes, systems, and technology, the opportunity to exploit them also is advanced. It is for this reason that today’s security professional must be more advanced, too. Those who reject the
modern workplace and all of its modernity are doomed. The workplace fact finder must embrace the new and ever-changing workplace. For it is impossible to resolve today’s modern workplace crimes without a fine understanding or at least appreciation for the environment in which the alleged offenses occurred.
2.5.2 Greater Use of Technology
Technology by definition promises convenience and economy. When technology
is properly crafted, the convenience and economy it provides combine and are
packaged as solutions. Technological solutions improve efficiency and profi
tability. Intentionally, they also reduce headcount. Engineers are constantly looking for ways machines can replace humans. Unfortunately, however, from an asset protection and loss prevention perspective, two things happen: (1) the technology provides
The Differences between the Public and Private Sector ◾ 53
new opportunity for exploitation, and (2) the quantity of supervision decreases.
There is a subtle dichotomy here; as the exposure increases, protections decrease.
Look around your own organization. Do employees not have more access to just
about everything and is not your organization operating with less supervision?
Furthermore, organizations have been tricked into thinking more can be done
with less supervision. Consider for a moment a few of the “revolutionary,” often
“enterprise-wide,” “leadership initiatives” the big name “thought leaders” have sold to America’s “bleeding-edge” organizations designed to “empower” employees and
create “world-class organizations” that are Built to Last.7 It’s sickening. I mean for heaven’s sake Let’s Get Real.8 It seems that for more than two decades corporate America has been running around looking for The New New Thing 9 and has yet to find it. Maybe the chief executive should ask The Millionaire Next Door,10 because she is certainly not going to find it while meandering down The Road Less Traveled.11
With all due respect, what some of these change merchants (see, I cannot help
using some of these terms, either) are peddling would not fly even if strapped to a Titan missile if attempted in most organizations. Although, much of this new-era corporate psychobabble and brainwashing nobly embraces employee relations and
empowering individual contributors (there I go again), the sad fact of the matter is most people do not care.
Forgive my cynicism, but my experience is that most employees do not want to
be empowered, most employees do not want more responsibility and most employ-
ees are neither prepared nor willing to make tough organizational decisions. By and large, today’s employees could care less about most of the stuff that today’s thought leaders think they are interested in. Largely what employees want is a safe, fulfilling job, fair pay for their labor and a work environment in which they are appreciated and treated with respect. Think about it, if the average line employee or staffer wanted more responsibility or to take more risk, they would have started their own company. What has been created in many cases are work environments in which
management has involved its employees in the business of running a business to a greater degree than what the typical employee wants. Then, in order to capitalize on the dividend of reduced headcount that the thought leaders and change merchants promised, they slashed the amount of supervision in their organizations; consider the now abandoned concepts of quality circles and self-directed work groups. Do you remember those? (Google the terms, if you don’t). Rarely have these initiatives worked as anticipated. Instead they have served as expensive experiments.
They often did nothing more than distract management and consume valuable
resources. By reducing the quantity of supervision without necessarily improving productivity, many of these well-meaning organizations created nothing more than fertile grounds for employee theft, dishonesty, and misconduct.
Let’s not forget the technology component. As management reengineered itself,
it often simultaneously embraced advances in technology. The new technologies
promised improved efficiency and quality. So is the case in most industries and workplaces. However, as I previously mentioned, new technology also means new
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vulnerabilities. As fast as the technology is deployed, villains will figure out how to exploit it to some criminal advantage. In some cases, they will even go farther and just steal the technology and the products it produces, as in the illegal practice of ripping off music CDs from the Internet.
Tip: When deploying new technology, always attempt to identify exploitable vulnerabilities and address them before they are found by the criminally minded employee. Remind management that bleeding edge is often just that.
2.5.3 More Litigious Workforce
America is the most litigious industrialized nation in the world. For all its greatness and potential, our society is also one wrapped in rules and regulations. Be it the placement of safety labels on household stepladders (has anyone ever really read them?) to the amount of vacation pay a terminated employee must be paid, we have decided that nearly everything we do, say, or think needs to be regulated. In the post-World War II era of regulation promulgation, we have passed more laws and
regulations than were implemented during the 175 years prior. This tangled morass of increasingly contradictory rules, laws, and regulations is rapidly reaching critical mass. Even lawmakers are beginning to recognize the trouble they have created.12
However, little has been done to solve the problem. Here’s an example of one per-plexing conflict.
The Americans with Disabilities Act (ADA, 42 U.S.C. 12101, 1990) stipulates
employers must reasonably accommodate those with recognized or perceived dis-
abilities. It also imposes an obligation to reassign work, make other accommodations to assist persons with disabilities or those recovering from injuries. This makes sense because early return-to-work policies reduce costs. However, if an employee is injured and an employer in an effort to reduce Workers’ Compensation costs
attempts to accommodate the employee and return him to an alternative or a light-duty position, the employer may very well violate the Family and Medical Leave
Act (FMLA). The Department of Labor has taken the position that if an employee
is entitled to leave because of a “serious health condition,” which may include a Workers’ Compensation injury, the employee is entitled to the same or equivalent position upon return. So, therefore, while the ADA and the employers’ Workers’
Compensation law may encourage rapid return to a light-duty assignment, the
FMLA allows the employee to refuse to do so.
Here’s another example. The Equal Employment Opportunity Commission
(EEOC) has recently pursued companies that use criminal conviction records for
preemployment screening purposes. In two highly visible and controversial cases, the EEOC has alleged the employers in question, BMW and Dollar General, discriminated against black applicants by using criminal conviction records as part
The Differences between the Public and Private Sector ◾ 55
of their preemployment screening process. The Commission asserted that while
the behavior of the two defendants was not discriminatory, per se, the companies’
practices had a disparate impact on blacks. That is, the employers did not actually engage in direct discrimination, but their practices statistically affected more blacks than nonblacks. Thus, they were guilty of discrimination, anyway. In the case of BMW, the Commission’s conclusion relied on records that showed that while the
workforce was overwhelmingly black and 55 percent of the applicants were black, 80 percent of those rejected were black.13 Say what you want about an administration that says it wants to create jobs, this sort of government overreach is nothing but a job killer. One must really contort the facts in order to conclude an organization whose workforce is mostly black is practicing discriminatory hiring practices against blacks.
Other government bureaucracies also are confusing employers. Since its cre-
ation in 1970, the Occupational Health and Safety Administration (OSHA) has
been hard at work creating a safer workplace for everyone. In doing so, the OSHA has published over 4,000 regulations, dictating everything from the height of a railing to the thickness of carpet. The maze of rules and often arcane regulations (how far a plank can stick out from the edge of a te
mporary scaffold) busy more than 2,000 inspectors and tens of thousands of attorneys that prosecute and defend the litigation that has precipitated. Attempting to toe the line, industry has spent several hundred billion dollars on compliance alone.14
Arguably, many of the laws and regulations, such as Title VII of the Civil
Rights Act and those mentioned above, have made a safer and fairer workplace
for Americans, but the net effect on the employer is more litigation and exposure.
People know it, too. In Los Angeles County alone, over 3,000 civil lawsuits are filed each day. Only a mere fraction of these are employment-related, of course; however, the fact remains that Americans like to sue. Most disturbing is that the trend shows no sign of reversing.
2.5.4 Expanded Rights and Protections of Employees
Some, like Philip Howard in his compelling 1994 best seller, The Death of Common Sense (Random House) , have argued that, to a certain degree, the expansion of rights is a zero sum game. That is, as the rights of one group expand, the rights of another contract. Zero sum theory applies well to aspects of economics, but
as we look at the ever-expansion of worker rights it seems to apply perfectly.
Legislation, such as Title VII, ADA, FMLA, and, more recently, the Health
Insurance Portability and Accountability Act (HIPAA), has certainly provided
much good. Few can argue against improving workplace safety or improving
the treatment of employees. However, the cost has been the erosion of employer
prerogatives and an exponential increase in compliance costs. It is estimated that HIPAA alone will cost employers over $45 billion. The trend has eroded employer doctrines, such as “at-will employment,” to the point of meaninglessness. Few
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employers can terminate at will, no less hire whom they wish without contem-
plating the litigation potential of perceived inequality or unfairness. We have created a mess.
Sadly, even the employees don’t win. Increased employer costs translate into
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