When to Use an Undercover Investigation

Special investigations are not always appropriate. In these situations, inserting an undercover operative is the better answer. The following are situations that have historically lent themselves to the use of undercover investigations:

• When there is consistent, reliable information suggesting employee misconduct or criminal activity, but insufficient in detail to permit appropriate corrective action or the identification of those involved.
• When misconduct or losses are known to occur in a specific area, but there is no information as to how they occur or who is responsible.
• When there is a strong suspicion or actual indicators of on-the-job alcohol or illegal drug abuse and/or drug dealing in the workplace.
• When there is a strong suspicion or actual indicators of on-the-job impairment due to alcohol or illegal drug abuse, yet supervision is non-responsive or incapable of intervening.
• When it is necessary to compare actual practices with required or supposed practices and routine auditing is not possible.
• When there is a high probability the use of undercover will produce the desired results and all other options have been ruled out.

When Undercover Investigations Are Not Appropriate

Here are a few of circumstances for which undercover investigations are not suitable:

• The investigation of protected union activities.
• The investigation of any activity permitted or protected by any governmental statute, rule or regulation or otherwise protected by a union agreement or contract.
• When some other form of investigation or fact-finding will likely produce the same results while consuming less time and resources.

Simply because a workforce is unionized, the use of undercover should not automatically be ruled out. It is permissible for an employer to use undercover and even place undercover investigators into a union as long as the investigation does not impinge upon the lawful and protected activities of that union or its membership.

Additionally, undercover should not be used to gather or collect information of personal or confidential nature or offensively intrude into the private lives of anyone where a reasonable expectation of privacy exists. Such efforts are actionable and may give rise to legal claims against the employer and its agents.

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