Preparation and Patience: The Reality of Family Investigations

Up until about eight years ago, I shied away from handling divorce, matrimonial, custody and infidelity cases (which I will collectively refer to as “family” investigations), since I had presumed they were messy. The corporate world was so much “cleaner”.

Then one of our corporate clients asked me to become involved in a very difficult family situation. I knew that many in our industry were not comfortable handling family matters since: a) there is too much emotion involved, and; b) the results can be bad news – and no one wants to muddy a strong corporate relationship with a messy, emotional family matter.

And boy, they were absolutely right!

But what I learned in the process is just how valuable the information, if gathered responsibly, can be. Fast forward eight years, and providing high-end family investigative services has become a staple part of our business. But it takes great care, preparation, experience and patience to do well, so I’d like to take some time to share my thoughts on some aspects of our family work which I hope will provide value:

Custody

It may surprise you, but custody issues account for over half of all family investigations we handle. Many clients have safety concerns regarding mom’s new boyfriend or dad’s new girlfriend, and rightfully so. In shared parenting relationships, parents want to know who their children are spending time with and we routinely provide detailed background checks on new spousal partners. As you can imagine, a history of drugs, violence, prostitution, gambling, alcohol or financial issues is a very real concern for parents of children who will be around new partners. A solid background check can put their fears to rest, or as in many cases we’ve had, allow them to petition the court with the information they need to help ensure a safe environment for their children.

Some parents have real and genuine concerns about their children’s activities while they are with the other parent and we often conduct discreet surveillance to observe those activities. We’ve seen very young children left unattended for long periods each night, including one woman who left her three children, all under the age of ten, alone while she spent several hours every night satisfying a $5,000-a-week scratch off lottery ticket addiction. That one surprised even me.

Cohabitation

Under the terms of dissolution, there is often a cohabitation agreement in which alimony or other payments are dependent on the recipient living alone, that is, without a live-in partner. We have conducted dozens of cohabitation investigations and proving cohabitation all boils down to the threshold the attorney feels is sufficient to go to bat. That is, it’s not up to you or me.

For example, one attorney may feel that three consecutive nights of cohabitation is sufficient to prove cohabitation, while another may feel that nothing less than five nights of any consecutive seven is sufficient. We had one case where a male friend stayed over every Monday and Thursday, and on Saturdays when the ex-wife did not have the children. Is that cohabitation? Point is, it all depends on the attorney’s threshold, not my opinion or yours.

We generally use vehicles to prove cohabitation, with additional surveillance to provide evidentiary support. That is, if a subject’s vehicle is present at an address at 10:00 pm and then is still there at 6:00 am, then he or she is generally deemed to have stayed overnight. Subsequent surveillance video on one or more of those mornings showing the subject entering his vehicle and departing the residence provides the evidentiary support. One major obstacle of course is when the layout or a long driveway, tall trees, or other obstructions prevent being able to view vehicles from the public domain. In those cases, proving cohabitation does not become impossible, it just becomes more time consuming, as longer term surveillance is required on each evening and morning, rather than just activity checks.

Infidelity

We’ve followed subjects through towns, cities and states, on trains, highways and planes. Successful infidelity surveillance involves extensive preparation, intensive coverage, hard work and usually a deep budget. Anything less and it’s amateur hour, so beware.

Pornography and Casual Encounters

One of the more distressing components of modern life is the ubiquitous availability of free pornography and casual sexual encounters through free and subscription websites and databases. The ability to view pornography and to arrange a sex meeting on a phone within minutes is a curse of society which is tearing relationships apart. Each situation is different and our investigation may involve computer or phone forensics, surveillance, undercover stings and/or other research. We are familiar with them all and we understand the distress and uncertainty this problem can bring to a relationship.

The above topics are by no means the extent of family matters we investigate. We identify hidden assets; conduct fraud investigations involving family and other caregivers for the elderly; conduct computer, DNA and handwriting analysis; investigate theft of intellectual property; research property disputes – you name it, it all happens between spouses and family. But if you have a sensitive family issue I do have some advice:

  1. Get several opinions regarding investigative strategy – a financial investigator wants to follow the money; a computer investigator wants to analyze the computers; and a surveillance expert wants to follow. Sometimes you need all three, but get different investigative perspectives before initiating any investigation.
  1. Never work outside of your attorney’s direction and always let him or her lead the charge. One of the biggest mistakes you can make is to gather information yourself, or to obtain it from an unknown source. Information and the way it is gathered can hurt you and your case.

Family investigations are, by definition, difficult, emotional and time consuming, and they need to be handled with care and sensitivity. But I’m glad I became involved with family work years ago and if you want to get my opinion on your situation, please give me a call – I get it now.

Self-Background Checks: The Truth Will Set You Free

Over the last ten years or so, I have been approached by numerous individuals requesting a background check on themselves, that is, a “self-background” check. Those individuals have included lawyers being considered for jobs and committees, senior executives under consideration for board membership, regular folk in the process of a job application, and in one case, a public figure who was under consideration as a spokeswoman for a company.

In each case, they wanted to know what “was out there”, that is, what a typical background investigation might uncover. Years ago I might have conducted a full background check, but now I just cut to the chase. “Ok, what did you do, where, and when”, I more typically ask. The very nature of a person wanting a self-background suggests that they want to know if some event or public record will show up in a background investigation and, more importantly, should they disclose it in their application/vetting process. And it seems to always be an arrest.

If a criminal case is expunged, is the person obligated to disclose it? Absolutely not, in a pre-employment background environment. However the disclosure paperwork I have seen for many committees, boards, organizations and companies (in a non-employment environment) ask the more broad question, “have you ever been arrested”. Although of course not in compliance with the FCRA, which governs pre-employment background investigations, many organizations still ask the question. The issue is, what will be uncovered, and how should you answer?

Let’s look at how records are collected. In Connecticut, New York and Florida, for example, a criminal case is litigated and recorded at the court level and then if convicted, is reported as a conviction by the appropriate state agency in each state (in this example, the Connecticut State Police, the New York Unified Court System and the Florida Department of Law Enforcement). The courts also maintain a record of the case and its disposition. If a case is ultimately expunged, the court SHOULD delete the record and report it as “not a public record”. Similarly, the state agency SHOULD also remove the record from its databases.

However in the interim period, commercial databases troll the court websites and state agencies to gather case information on a daily basis and in many states, state agency information is also sold to the commercial databases. So, if a case is expunged or dismissed, the courts delete the records, the state agency delete the records, but the record still lingers in the national commercial databases. And is most often not removed. Similarly, there is often media coverage in police blotters and local newspapers which are also online and which also do not go away.

Similarly, many states do not report DUI’s as criminal records, rather, they can only be identified through research of Drivers’ History records. So while you may not have a reported criminal record for a DUI, or you fulfilled the obligation of the court through accelerated rehabilitation or similar, DMV still reports the conviction, the suspension and license reinstatement. They don’t care that the court record was removed, rather, DMV merely reports the facts, that is: suspension, reason, points, and license reinstatement. Those records are routinely removed from a driver’s history after a period of time (ten years in Connecticut).

In every case in which I have completed a self-background check, the subject is amazed that the record can still be found, as they were assured by lawyers or the court that the record would “go away”. On the contrary, I cease to be amazed how readily these records are located.

So what do you do, how do you answer? I am not an attorney and this should in no way be construed as legal advice, but I can tell you that the acknowledgment of a youthful indiscretion is far less significant in the vetting process than doubt of your current veracity. The searching entity may never find the information, depending on the quality of the firm they select to conduct the actual investigation, but there’s always the chance that it may be found.

To that end, in each case, I have shown the client how easily accessible the information is, and in each case have encouraged them to disclose the matter. Technology and databases are wonderful things, but they have very, very long memories. If still in doubt, give me a call and we’ll see what we can find.

The Perils of Pre-Employment Background Investigations

An employer is permitted by law to conduct a background investigation on any perspective employee (we’ll call them the “candidate”) and it has become almost standard practice now for employers to do so. However, please proceed with caution – the world of pre-employment background investigations is fraught with litigation, fines and regulation for non-compliance, for employers and the providers of these reports alike.

I’d like to share some thoughts on the process. I am not an attorney and the following information is not legal advice, just my thoughts and observations gained from 17 years of experience:

  1. All Pre-Employment Background Investigations are governed by the Fair Credit Reporting Act (FCRA). A third-party, or outside screening agency that conducts pre-employment background investigations for an employer (such as Artus Group), is known as a Consumer Reporting Agency (CRA). The report provided by the outside screening agency is an Investigative Consumer Report (ICR, or for the purposes of this article, “investigative report”).
  1. No employer can ever commission an investigative report without the signed authorization of the candidate. Ever. Don’t even think about it.
  1. The authorization form provided to the candidate is very specific. Ours is currently nine pages long, so if your current form is a three-pager, you need to take counsel, and quickly. The authorization form, among other things:
  • Must advise the candidate of his or her rights under the FCRA, which are extensive.
  • Must provide state specific rights for candidates from California, New York, Maine, Massachusetts, New Jersey and Washington.
  • May or may not inquire whether the candidate has been convicted of a crime, depending on jurisdiction.
  • Must offer candidates from California, Minnesota and Oklahoma the opportunity to request a copy of the investigative report, as entitled to them by law in those states.
  1. The FCRA strictly regulates what the CRA can and cannot report, and to complicate matters further, those restrictions are state specific. Generally (except in California, for example, but we’ll get to that) adverse public records (with the exception of criminal convictions) may only be reported by the CRA for up to seven years prior to the report date, ten years for bankruptcies. This is significant when you consider the dilemma faced by CRAs when severely adverse information pre-dating seven years is identified but cannot be reported. Think domestic violence restraining orders, civil fraud litigation, tax liens, licensing discipline etc. But the FCRA mandates that that information cannot be reported, and if so, violators are fined and regulated. The broad exception (other than California) is that if the candidate is expected to earn more than $75,000 per annum, there is no restriction on date reporting, which means that all historical records can be reported. This, quite rightly, was designed to allow a much deeper background check on senior executives.
  1. If the employer decides not to hire the candidate based on information in the investigative report provided by the CRA, called an “Adverse Hiring Decision”, the employer MUST provide the candidate a copy of the report and must adhere to the FCRA’s strict Adverse Hiring Procedure. Violating employers are fined and regulated and, very often, sued by the candidate. See my friend and Connecticut Employment Law Blogger Dan Schwartz’s column on this very matter at http://www.ctemploymentlawblog.com/2014/11/articles/background-check-settlements-still-costing-employers-big-dollars/
  1. In California, not only is the reporting of all adverse records restricted to seven years, regardless of income, the CRA must mail a copy of the investigative report to the candidate within three days of its completion.
  1. Many facets of the FCRA remain vague however, and one wonders if that is deliberate in certain instances. In Connecticut, for example, a credit history report may only be included as a component in a pre-employment background investigation if the candidate has fiduciary responsibilities or supervisory responsibilities. However, Connecticut has failed to date to provide an accurate definition of either.
  1. In some states, the employer may only consider a criminal record if the nature of the conviction is applicable to the nature job the candidate would be doing. Hmmm, think about that for a moment.

Clients often ask if it’s worth doing a background check on an applicant. I provide the following thoughts:

  1. Yes
  2. Yes
  3. Yes

Some thoughts on why:

  1. Example: If a company with three hundred employees hires a rotten egg, that person will not affect the operation as much as if a small company with three employees hires the same person. I believe it is critical for small businesses to conduct background investigations, even more so than for larger companies.
  1. Example: A company employs a salesman with two DUI’s on his record. He takes a client out for a Christmas lunch and has too many drinks. On his way home he hits and kills a pedestrian. Will his employer be sued if it knew about his DUI history? Probably.
  1. See my Case Study https://connecticutpiblog.com/2015/01/12/case-study-background-check/. This was a very real case and our client is STILL paying the price.

My Opinion: If you conduct pre-employment background checks, regularly take counsel to ensure you are in compliance. Make sure your authorization forms are up to date, since the laws in each state change regularly. Ensure you follow the correct procedures if you decide to make an Adverse Hiring Decision as a result of the investigative report, and understand that your CRA is restricted as to what it can and cannot report. There are certainly perils in pre-employment background investigations, but they can be avoided through solid understanding of the FCRA.

View the FCRA at http://www.consumer.ftc.gov/sites/default/files/articles/pdf/pdf-0111-fair-credit-reporting-act.pdf

Case Study: Background Check

A pre-employment background investigation could have saved a client hundreds of thousands of dollars. The client hired a Vice President of Operations solely based on references. Twelve months after the employee was hired, he was offered an equity position in the company, which he accepted through a signed agreement. Later that month he was involved in an accident at a work site on company time, which went unobserved. He was granted a workers’ compensation leave, where he remained for over a year. He was receiving a six figure income and still had an equity stake in the company. The client became embroiled in costly litigation regarding this matter and spent tens of thousands of dollars in legal fees as a result.

The client requested a background investigation for the purposes of conducting the litigation. The background investigation of the employee revealed a Federal criminal record for attempted fraud, a previous workers’ compensation claim, one Federal bankruptcy and eighteen civil lawsuits related to non-payment of debt and contract disputes, three of which were related to former employers. The client remains in litigation which has cost the company significant resources, time and money. This would have been avoided if the client had conducted a pre-employment background investigation prior to hiring the individual.