Five Phase Investigation Process
Phase I: Preparation and Planning
This portion of the work involves the identification of the client needs and objectives; development of an investigative strategy, logistical preparations and general coordination. This service will be charged on a per investigator basis. A one-time administrative/set-up fee will be charged for each investigator selected and placed into client’s workforce. Additionally, any transportation, lodging or other customary expenses incurred by Diversified Risk Management, Inc. during this portion of the work, will be passed on to the client.
Phase II: Information Gathering and Problem Identification
An investigator(s) who is employed by Diversified Risk Management, Inc. will be placed into the client workforce for the purpose of conducting an undercover investigation in an effort to obtain information requested by the client. This service will be provided at a cost per week; per investigator, based on a five (5) day work week. Work performed beyond a five (5) day work week will be provided at an additional cost per day; per investigator. Should the investigator’s cover pay, as paid by the client, be less than the required minimum per hour, the difference will be added to the weekly rate. The rates include the cost of case supervision/management, the submission of the operative’s daily report and the preparation of the Impact Reports. These will be provided to the client for every ten (10) work days in the assignment. Any transportation, accommodations and utility expenses incurred by Diversified Risk Management, Inc. during the work on an out-of-town assignment will be in addition to the above expenses.
All security deposits and other cash outlays which are charged to the client and ultimately recovered by Diversified Risk Management, Inc., will be returned or credited to the client at the conclusion of the assignment. With the approval of the client, Diversified Risk Management, Inc. may elect to augment the undercover portion of the work with other forms of information gathering. Should this service be used, separate rates per hour will apply for the following staff:
• Field Investigator
• Surveillance Investigator
Phase III: Verification and Analysis
This portion of the process involves the interviewing of those employees believed to be primarily in violation/s of company policy, as described by the client, with the purpose of expanding Diversified Risk Management, Inc. information base and obtaining statements.
Should this service be used, separate rates will apply for the following staff:
• Interview Coordinator
In preparation for the interview process, our Interview Coordinator will compile the necessary reports and materials needed. This preparation time will be billed at the Interview Coordinator rate.
Administrative expense charges include: any word processing, photocopies, reproduction of audio and/or video tapes, transcription, mileage, transportation, communication and accommodation expenses incurred by Diversified Risk Management, Inc..
Phase IV: Disbursement of Disciplinary and Corrective Action
Diversified Risk Management, Inc. will not make recommendations regarding discipline, but Diversified Risk Management, Inc. will, upon request, assist the client by providing a written summary of the undercover investigation and subsequent interviews. Diversified Risk Management, Inc. management will assist the client in understanding the results of the undercover investigation and the issues presented by the results. Upon request, Diversified Risk Management, Inc. will prepare a confidential report which is intended for the exclusive use of the client and their attorneys. The report will contain information gathered during Phase II and Phase III (if applicable) of the investigation, from sources deemed reliable by Diversified Risk Management, Inc. As a result, of the work, from employees of the client whose reliability is not known to Diversified Risk Management, Inc., Diversified Risk Management, Inc. makes no guarantees, warranties or other representations concerning the accuracy of the information obtained during Phase II and Phase III (if applicable) of the investigation, or the suitability of the information for any particular purpose. Diversified Risk Management, Inc. makes no recommendations as to the interpretation or use of the information by the client. The client accepts full responsibility for the legal consequences of any use or disclosure of any confidential report or its contents provided by Diversified Risk Management, Inc.
The cost of Phase IV of the program is variable and is determined in large part by the duration of the meeting between executives of Diversified Risk Management, Inc. and the appropriate representatives of the client. The hourly rate of Diversified Risk Management, Inc. executives attending the meeting will be billed at a rate per hour, plus expenses.
Phase V: Prevention and Education
Diversified Risk Management, Inc. will provide, upon request, in-house training and workshops based upon the needs of the client. These workshops will focus on communicating the client’s policies to its employees and educating the employees about the need to follow the client’s policies. In-house training and workshops will be billed accordingly, at the time the in-house workshop is conducted.
The total cost of the investigation will depend in large part upon the severity or complexity of the problem, the number of employees involved and the objectives to be reached.
CONFIDENTIALITY “ATTORNEY WORK PRODUCT”
When the decision has been made to conduct an undercover investigation, the initial step is to select the most suitable operative for the cover job with the prerequisite experience necessary to meet the investigative objectives. It is also imperative to determine the most optimal method for placing the operative in to the facility. There are two ways to accomplish this process. The operative can simply apply for employment through the standard procedures, or a controlled entry can be researched and arranged. These options will be clearly covered in this section of the manual.
Diversified Risk Management, Inc. agrees and communicates in writing, to all of its clients, that it will not divulge, disclose or communicate to third parties, without the express written authorization of the Client, any information relating or pertaining to Diversified Risk Management, Inc. services for Client or information concerning Client’s business, functions or operations acquired by Diversified Risk Management, Inc. during the course of the work. In addition, Diversified Risk Management, Inc. agrees to the timely return of any material which may contain such information to the Client, upon completion of the work or termination of the Agreement. Diversified Risk Management, Inc. confidentiality obligations under the Agreement, as stated above, shall survive completion of the work or termination of the Agreement.
The nature of our work and sensitivity of our client relationship makes it extremely important that everything said and done on behalf of Diversified Risk Management, Inc. always be held in the utmost confidence. If a doubt exists concerning the policy, resolve the doubt immediately by discussing the matter with management.
All employees are urged to be extremely careful about what is said to anyone unknown to them over the telephone. The only persons authorized to disclose, divulge or provide company confidential, proprietary, personnel, credit, employment status or verifications information to any outside person, party or business are authorized management personnel.
We expect all employees to conduct themselves in accordance with respect to confidentiality. Diversified Risk Management, Inc. observes this matter very seriously. An employee will be in violation of this policy if they divulge any unauthorized information or have knowledge about an employee violating this policy and it is not reported to management.
The attorney-client privilege is a benefit of having a labor attorney involved in an investigation. The attorney/client privilege protects all communications between a client and the attorney from disclosure demands, from a third party. It is the client’s privilege–and cannot be unilaterally waived by the attorney. The rationale behind the privilege is simple; it encourages full and frank communication between an attorney and client. The more work that the attorney actually does, the more protection you might expect from the privilege. To be protected, the communication must be confidential and occur when an attorney is acting in his or her legal capacity.
There is a technical aspect of the attorney/client privilege that the investigator and witnesses need to understand. The privilege “belongs” to the investigating corporation or business entity itself, the “client” and not to an individual. People speaking to the attorney are not assured of full confidentiality unless that attorney represents the individual personally. In an employment setting, the attorney is gathering information to provide legal advice to a corporation. Rarely would that attorney be said to be representing any individual employee. Investigators, the accused and witnesses need to be fully aware of this aspect of the attorney/client relationship.
There are exceptions to this rule. A 1981 U. S. Supreme Court decision ruled that communication between an employee and the employer’s attorney may be privileged if it meets three requirements: it is information not known by the managing group; it is information that an employee knows from his/her scope of duty and the attorney is gathering the information to give legal advice to the corporate entity.
However, it is important to remember that the facts underlying the event or complaint may not be protected by the attorney-client privilege. For example, if a complaint is made, and an attorney interviews an employee who provides details of having witnessed specific acts or events, the parties to the communication may not be forced to reveal the communication in a later lawsuit. But, the employee would have to retell this information in a deposition or at trial, the events they witnessed, which may amount to the same thing.
The “attorney work product” doctrine protects the documents and theories prepared by an attorney, in the course of an investigation, if litigation is pending or is anticipated. An attorney who takes a written statement from a witness is generally not required to turn over the statement to an opposing party in a lawsuit under this theory. The opponents in the lawsuit have a right to try to get a deposition or a statement from the same witness, but the attorney’s work product in developing the statement on behalf of his/her client cannot be forced to be revealed to a third party (e.g. in court).
The “attorney work product” doctrine can also protect work prepared under the direction of an attorney. This doctrine may apply when an attorney is instructing others on how to conduct an investigation. If an attorney is involved in an investigation and asks to interview witnesses, there may be some protection under the attorney work product doctrine, from disclosing the notes of these non-attorney investigations.
An attorney is often the most prudent and impartial investigator. But because of cost, timing and other practicalities, an attorney may not always be used. The non-attorney investigator must maintain a heightened sensitivity to potential future use of investigatory materials. Any documents or tapes generated during the investigation may ultimately be available to someone in a lawsuit or to an investigating government entity.
Another privilege is emerging in the law that protects some types of information gathered in investigations by non-attorneys. Some states and courts are recognizing a Self-Critical Analysis Privilege. If the information gathered falls within this privilege, the corporation may be able to prevent its disclosure to outsiders.
The Self-Critical Analysis Privilege first arose in the medical community in the 1970’s, when doctors began holding staff meetings to discuss problem cases or deaths. Malpractice attorneys tried to get copies of the minutes and reports from these meetings. Court rulings and statutes evolved which declared that such information was not discoverable. The key to this philosophy was to encourage frank discussion which would aid in prevention of malpractice.
This type of privilege has been successfully asserted in employment matters related to discrimination investigations. This privilege has kept the subjective analysis portion of Affirmative Action Plans from being discovered in discrimination cases. Courts want to encourage candid statements regarding a company’s efforts to stop discrimination, so disclosure may not be mandated in selected jurisdictions.
With the new emphasis on employer self-auditing and self-policing, courts may become more lenient and encourage corporations to conduct internal investigations by reducing the threat that such investigations will be used by plaintiffs in lawsuits or by the government in its investigations. However, the privilege is new and not yet widely recognized.
Additionally, courts have ruled that the privilege does not apply to criminal enforcement proceedings.