Employers Need to Look Before They Leap
By Rory Montez
In the Private Investigation field, there are a lot of unique business challenges. There are odd hours, strange requests and plenty of healthy competition with other firms. Rarely do clients sound happy to speak to you, as they are usually dealing with a difficult situation; often it’s an emergency and they need immediate help. Usually they need help yesterday. It’s in these moments, when they most need a helping hand that they are most exposed to unethical consultants.
How? Human Resource Consultants, CPA’s, Computer Forensic Consultants and unlicensed P.I.’s place their clients in jeopardy by conducting investigations without a legally-required license. When employers and attorneys need a third-party investigator, most will engage a reputable Private Investigator. But some engage “Consultants” or fly-by-night P.I.’s because employers or attorneys are not aware of state licensing requirements. Others strive to save on the cost of the investigation. While consultants may have the skills to conduct an investigation, their work will undergo serious scrutiny if their investigation involved any forms of evidence collection (hint: most do).
For example, if the investigation results in criminal or civil action or disciplinary action, their work may be inadmissible and lead to the results of the investigation being thrown out. Why? Because under California state law (Section 7521 CA Business & Professions Code), only Private Investigators are allowed to secure evidence to be used before any court, board, officer or investigating committee.” Consultants are not qualified to collect evidence under California law and as a result, any evidence collected during an investigation may be treated as improperly obtained evidence and thrown out.
Also of key importance is the California Private Investigator Act (Sections 7512-7514 CA Business & Professions Code), which clearly states that only Licensed Private Investigators can represent themselves as Private Investigators and engage in Private Investigation.
“No person shall engage in a business regulated by this chapter; act or assume to act as, or represent himself or herself to be, a licensee unless he or she is licensed under this chapter; and no person shall falsely represent that he or she is employed by a licensee.” (Section 7520 CA Business & Professions Code)
Thus, it is critical to hire a licensed Private Investigation Agency for the results of an investigation to be unimpeachable in a court of law. Without doing so, you are creating a potential target for aggrieved parties to challenge the validity of the investigation. Let’s say as an example, an employee terminated for misconduct provided a written declaration detailing his wrongdoing to a Consultant. This declaration was the basis for his termination. In such an instance, if the terminated employee becomes aware that a Consultant conducted the investigation instead of a licensed P.I., they may be able to challenge the validity of the investigation and crucially, the validity of their own written declaration as evidence used to make an employment decision. These issues can make an employer vulnerable to litigation and represent an unnecessary risk. Therefore, it is considered wise to verify the current license of any Investigator you are considering engaging.
Think these are just scare tactics? Consider the following cases:
- Edward Ortega, a 42 year old Ridgecrest man is currently being charged for Illegally Working as a Private Investigator, a misdemeanor under Section 7523(A) of the Business & Professions Code. Ortega allegedly impersonated a real Private Investigator, using his name and licensing information to obtain a work spying on Hawthorne City employees and conducting workplace interviews. Ortega faces additional charges for Perjury and False Impersonation, in addition to the Business & Professions code criminal violation. Ortega was held to answer in May 2012 and the case is still pending.
- Kevin Sianez, a 56 year old Fountain Valley resident and ex-cop was charged and convicted of defrauding his clients by working as an unlicensed Private Investigator. Sianez was first charged in 2009 and was finally convicted in May 2013 of Engaging in Business without a License (Section 16240 CA Business & Professions Code), Unlawful Representation of a Licensed P.I. (7523(d) CA Business & Professions Code) and False Use of Private Investigator License (7523(a) CA Business & Professions Code), amongst other charges.
These examples illustrate the importance of carefully vetting and selecting a qualified Private Investigator to assist you. To learn more about retaining qualified resources to assist you with your HR, financial crime or computer forensics needs, contact us for a consultation.
About the Author:
Rory Montez is a Private Investigator and Case Manager atDiversified Risk Management Inc., (DRM), a licensed, nationwide Private Investigation firm. Mr. Montez is a graduate of Cal State Long Beach and has over six years of experience conducting investigations and interviews. He has managed countless Background Investigations and Due Diligence matters and is well-versed with Surveillance, Financial crime and undercover investigations. In addition, he manages DRM’s computer forensic services and provides clients with expertise on such topics as Diversity Jurisdiction, Computer Forensics, and Social Security Number issuance for wage & hour matters. Mr. Montez has conducted investigations in five U.S. states, Mexico and Canada. Mr. Montez currently oversees Diversified Risk Management’s Research department.