Hi there. I am looking for someone who can advise me on a particular issue I have with a past client. She was terribly difficult to work with, and so we ended up having to fire her as a client about halfway through the project. We canceled the remaining billing, and even gave her a partial refund. Many months after this I learned she had been disputing / submitting chargebacks against the original payments she made (corresponding to the first half of the project, which was completed). Unfortunately I was not notified about this until after the dispute period (the automatic email they sent me about it went to spam) and so it automatically ruled in her favor. So in effect, she basically used this approach to steal $4,500 from my company, and I'm looking for someone to advise me on possible courses of action here. For example, maybe things like: - filing a lawsuit - threatening her with a letter from a lawyer - some other approach? - I also realized we still have her card on file, and so i think I can try to rebill it again for the same amount, and this time I would have a chance to submit evidence during the likely dispute she will probably try to do again. Is this advisable? Are there any negative legal consequences from using this approach? Overall, would really appreciate for a professional who can advise "here are your options, pros / cons / implications of each, I would recommend X, etc" Thank you
I am really sorry to hear what had happened to you, it is a matter of grave concern. I will surely advice you what to do in such situation, but before that let me take you into bit of detail so that this kind of situation does not arrive in the future. The money was stolen by unfair means therefore I will consider it as a corporate fraud.
The ACFE further defined occupational (corporate) fraud as:
“The use of one’s occupation for personal enrichment through the deliberate misuse or misapplication of the employing organization’s resources or assets.”
Expanding on this definition, the ACFE further breaks down corporate fraud into four major key elements which all fraudulent activities have in common:
1. Is clandestine (i.e., conducted with secrecy);
2. Violates the perpetrator’s fiduciary duties to the victim organization.
3. Is committed for the purpose of direct or indirect financial benefit to the perpetrator; and
4. Costs the employing organization assets, revenue, or reserves.”
Corporate fraud generally falls into one of the three categories: asset misappropriation, corruption, and fraudulent financial reporting. Various theories have attempted to explain the causes of fraud and the most cited theory is the Fraud Triangle theory, which identifies the elements that lead fraudsters to commit fraud. Although the Fraud Triangle applies to most fraud cases, it does not explain all situations, especially, there have been significant social changes since the theory was developed in 1950s. The Fraud Triangle can be enhanced to help organizations understand and manage fraud risks in modern world. This section discusses not only the classic fraud theory but also addresses fraud theories subsequently developed to mitigate the shortcomings of the original theory.
Fraud does not just “happen.” Typically, various circumstances combine to create a situation favourable to fraudulent activity. Donald R. Cressey, a criminologist who studied embezzlers, developed the three elements of the Fraud Triangle. It is the most widely accepted model used to explain how and why people commit fraud.
The Fraud Triangle usually starts with pressure (what motivates the crime in the first place) followed by an opportunity, and finally a process of internal rationalization. Three elements are typically present when fraud occurs and are often present in various ways in an organization. Since all three of these drivers must be present for an act of fraud to occur, each of them is addressed individually in the following sections.
1. Pressure: Pressure (motive) is what causes a person to commit fraud. Pressure can come from almost anywhere; from inside the workplace (e.g. unrealistic performance goals) to completely unrelated to the person’s employment (e.g. financial distress, substance abuse, overspending, addiction problems). Thus, it is non-sharable in the eyes of the fraudster. According to the Chartered Institute of Management Accounts, greed is often the number one cause for fraud, along with problems with debt and gambling. That is, although many people are faced with the opportunity to commit fraud, only a minority of the greedy or needy do so. Personality and temperament, including how frightened people are about the consequences of taking risks, also influence their decisions. Some people with good principles fall into negative behaviour patterns and develop tastes for the fast life, which temps them to commit fraud. Others are motivated only when faced with personal and/or professional ruin.
The ACFE lists the following examples of pressures that commonly lead to fraud:
1. Living beyond one’s means
2. High bills or personal debt
3. Personal financial losses
4. Family or peer pressure
5. Unexpected financial needs
6. Substance abuse or additions
7. Need to meet productivity targets at work
2. Opportunity: Opportunity is the ability to commit fraud or to conceal it. Although the opportunity is often the most challenging to spot, it is fairly easy to control through improvements to internal controls and organizational or procedural changes. Failure to establish adequate controls to detect fraudulent activity increases the opportunities for fraud to occur. Thus, fraud is more likely in an organization where there is:
1. Weak internal control and audit system
2. Poor security over assets
3. Ethics and cultural issues
4. Little fear of exposure and likelihood of detection
5. Lack of consequence of perpetrators
6. Ineffective anti-fraud programs
7. Poor supervision
8. Insufficient training
9. Unclear policies regarding acceptable behaviour
10. Lack of audit trail
Various surveys indicate that deficiency in internal control is usually a significant factor for organizations victimized by fraud. Research also suggests that some employees are totally honest, some are totally dishonest, but that many are swayed by opportunity. Therefore, it is essential that organizations establish processes, procedures and controls that do not put employees in a position to commit fraud. For example, an employee may recognize an opportunity to write a check payable to himself if he has access to blank checks. However, the check can be identified during the reconciliation of the bank statement that the employee will be caught. In this case, although an opportunity to steal presents, there is no chance to steal without being caught. Conversely, if the control environment is weak where segregation of duties is not in place (e.g. the same employee reconciles the bank statement), the employee has a perceived opportunity to commit fraud under this circumstance.
3. Rationalization: A justification of fraudsters’ crime to make the act acceptable is known as rationalization. It also refers to behaviour, character or ethical values that allow individuals to justify their reasons for committing fraud. Basically, it is a way to justify in the person’s consciousness the act of fraud is not so bad. The Chartered Institute of Management Accountant concludes that people rationalize fraudulent actions as:
Necessary − especially when it is done for the business (e.g. achieving sales targets)
Harmless − because the victim is large enough to absorb the impact (e.g. the organization does not really “need” the assets)
Justified − because the victim deserved it or because I was mistreated (e.g. unhappiness over promotions)
Examples of common excuses given by fraudsters to explain their corrupt conduct include:
1. The organization owes it to me. Everyone else does it.
2. It is not really a serious matter.
3. We have always done it.
4. Nobody will get hurt.
5. It was the only way we could compete.
6. The organization can afford it.
7. We thought our anti-corruption programs were sufficient.
8. We did not know the conduct would be considered a bribe.
9. It was not a bribe; it was part of conducting business.
10. Bribery is part of the culture in the county.
Let me give you an example to understand this combination in a much better way. The following examples from U.S. Department of Défense (DOD) highlight the presence of motivation, opportunity, and rationalization in each fraud scheme.
Example 1: Motivation, Opportunity and Rationalization
Case Facts – A U.S. DOD employee responsible for assisting the contracting officer with funding, performance, and technical issues relating to a DOD program admitted to Federal investigators that he disclosed contractor bid and source selection information to a company bidding on a new contract. The employee gave the company the information so they would have a competitive advantage during contract biding.
Motivation – In exchange for the information, the company provided the employee with a new car.
Opportunity – The contracting officer was overwhelmed with their workload and paid little attention to contract awards less than US$3 million.
Rationalization – The employee had been passed over for promotion several times and believed he was mistreated and not valued by DOD.
Outcome – The employee was prosecuted in Federal court and received a maximum sentence of 20 years in prison and a fine of US$250,000.
Example 2: Counterfeit Parts
Case Facts – During a 5-year period, a DOD parts supplier purchased counterfeit semiconductors from sources in Hong Kong and China. The individual went to great lengths to conceal the true origin of the parts and sold them as legitimate and reliable components for use in submarines and complex machinery.
Motivation – The supplier was motivated by money. Through the sale of about 14,000 counterfeit parts, they were paid several million dollars.
Opportunity – Counterfeit parts are difficult to detect once they enter the DOD supply chain. Globalization of the supply chain has resulted in many suppliers receiving goods from second- and third-tier suppliers. Quality assurance tests may not detect all counterfeit parts because manufacturers are skilled at making parts appear authentic.
Rationalization – Because the scheme was successful over time, the fraudster believed their chances of getting caught were minimal or non-existent.
Outcome – The fraudster was indicted on eight counts that included conspiring to traffic in counterfeit goods, conspiring to traffic in counterfeit military goods, trafficking in counterfeit goods, and conspiring to commit wire fraud and money laundering. When convicted, they were sentenced to 75 years in Federal prison.
The Fraud Triangle is the basis of most corporate frauds but there are Fraud Diamond and Fraud Pentagon too. Let me discuss these with you as well.
1. The Fraud Diamond: The Fraud Diamond, first presented by David Wolfe and Dana Hermanson in the CPA Journal in 2004 (The Fraud Diamond: Considering the Four Elements of Fraud), adds a new component (capability) to the triangle which turns it into a diamond. Based on Wolfe and Hermanson, although perceived pressure or incentive might coexist with an opportunity to commit fraud and a rationalization for doing so, it is unlikely for fraud to take place unless the fourth element − capability is also present. Capability can be described as an individual’s personal traits and abilities. That is, even with the presence of the other three elements, the potential fraudsters must have the skills and ability to commit fraud. For instance, many frauds, especially some of the multibillion-dollar cases, would not have occurred without the right person with the right capabilities in place. The fraudster must have the capability to recognize the fraud opportunity and turn it into reality. With the forth element affecting individuals’ decision to commit fraud, organizations and auditors need to understand employees’ individual traits and abilities in order to assess the risk of fraudulent behaviours.
2. The Fraud Pentagon: Jonathan Marks expanded the Fraud Triangle to the Fraud Pentagon, adding two components: arrogance and competence. According to Marks, the arrogance of an individual relates to his or her lack of conscience. An attitude of superiority that an individual has which makes him think that the rules do not apply to him. The competence of an individual relates to the ability to perform a fraudulent act. Competence may be seen as an expansion of the opportunity component by Cressey’s theory. Today’s corporate culture celebrates fame and wealth. Such environment encourages employees seeking for hefty pay-outs and greater recognition at any price. There will always be a temptation to manage earnings inappropriately because meeting projections and “guidance” suits everyone, from executives whose compensation may be based on earnings-driven performance measures, to holders of options and Wall Street analysts. The line between appropriate earnings management techniques and “cooking the books” can be a blurry one. According to a recent survey, executives believes as many as one in five companies intentionally misrepresents its earnings, using “discretion within GAAP. Finally, many businesses non longer are owner-managed, therefore, directors and managers are unlikely to bear ownership costs when mishaps occur. These changes support the need to expand on Cressey’s triangle theory to a five-side pentagon theory as pointed out by Marks’ observations:
1. Many frauds are committed by people in very senior positions with — Big Egos
i. They often have bully mentality and believe that the rules do not apply to them
ii. They think they can circumvent internal controls and not get caught
2. Competence gives the fraudster the opportunity to turn desire into reality, such as the six common traits of personal competence mentioned earlier:
i. Functional authority within the organization
ii. Sufficient intelligence to understand and exploit a situation
iii. Strong ego and personal confidence
iv. Strong coercive skills
v. Effective at being deceptive
vi. High tolerance for stress
Once you have investigated and concluded that an employee has been stealing, either assets or data, take the following steps:
1. Make sure your evidence is strong: Video is preferred, but witnesses can also work. Gather facts and compile documentation; audit computer files, financial records; preserve evidence, such as documents, computer files and e-mails; and maintain a chain of custody to prove the evidence wasn’t tampered with. Document all steps and summarize your interviews. The investigative report may be important in the event of any subsequent legal action. Evaluate whether to administer a lie detector test. The Federal Employee Polygraph Protection Act governs the use of polygraph exams in the workplace.
2. You will probably want to terminate the employee immediately: Make sure the method you use to document the termination follows your company policy and check to see if there are any issues that must also be addressed such as contracts, collective bargaining agreements, union representatives that need to be notified, etc. A termination can be a legal nightmare. One of the best things you can do for yourself is use a Termination Letter Template to keep things consistent and documented. In a union setting, an employee has the right to have a union representative or co-worker (not a lawyer) present during any interview that the employee expects could result in discipline.
3. Notify the police: If you have insurance covering employee theft, a police report will be needed
4. Do not deduct anything from the employee’s final paycheck: There may be state restrictions governing this.
5. Do not discuss the situation with other employees or outsiders: Revealing confidential information about the situation or those involved can ruin the credibility of the investigation.
6. If the employee leaves immediately while you are terminating them, have someone else contact the police: If you fear for your safety or the safety of your workplace, hire an outside firm who can be armed to escort them off premises.
Also keep in mind that you must have these 15 types of evidence against the employee to make your case stronger:
1. Analogical Evidence: While not a kind of evidence you’d use in court, this kind of evidence can be useful for increasing credibility by drawing parallels when there isn’t enough information to prove something in a workplace investigation. Analogical evidence uses a comparison of things that are similar to draw an analogy.
2. Anecdotal Evidence: Anecdotal evidence isn’t used in court but can sometimes help in a workplace investigation to get a better picture of an issue. The biggest problem with this kind of evidence is that it is often “cherry picked” to present only anecdotes that support a particular conclusion. Consider it with skepticism, and in combination with other, more reliable, kinds of evidence.
3. Character Evidence: This is a testimony or document that is used to help prove that someone acted in a particular way based on the person’s character. While this can’t be used to prove that a person’s behaviour at a certain time was consistent with his or her character, it can be used in some workplace investigations to prove intent, motive, or opportunity.
4. Circumstantial Evidence: Also known as indirect evidence, this type of evidence is used to infer something based on a series of facts separate from the fact the argument is trying to prove. It requires a deduction of facts from other facts that can be proven and, while not considered to be strong evidence, it can be relevant in a workplace investigation, which has a different burden of proof than a criminal investigation.
5. Demonstrative Evidence: An object or document is considered to be demonstrative evidence when it directly demonstrates a fact. It is a common and reliable kind of evidence. Examples of this kind of evidence are photographs, video and audio recordings, charts, etc. In a workplace investigation, this could be an audio recording of someone’s harassing behaviour or a photograph of offensive graffiti.
6. Digital Evidence: Digital evidence can be any sort of digital file from an electronic source. This includes email, text messages, instant messages, files and documents extracted from hard drives, electronic financial transactions, audio files, video files. Digital evidence can be found on any server or device that stores data, including some lesser-known sources such as home video game consoles, GPS sport watches and internet-enabled devices used in home automation. Digital evidence is often found through internet searches using open source intelligence (OSINT).
7. Direct Evidence: The most powerful type of evidence, direct evidence requires no inference. The evidence alone is the proof. This could be the testimony of a witness who saw first-hand an incident of sexual harassment in the workplace.
8. Documentary Evidence: Most considered to be written forms of proof, such as letters or wills, documentary evidence can also include other types of media, such as images, video or audio recordings, etc.
9. Exculpatory Evidence: This type of evidence can exonerate a defendant in a – usually criminal – case. Prosecutors and police are required to disclose to the defendant any exculpatory evidence they find or risk having the case dismissed.
10. Forensic Evidence: Forensic Evidence is scientific evidence, such as DNA, trace evidence, fingerprints, or ballistics reports, and can provide proof to establish a person’s guilt or innocence. Forensic evidence is generally considered to be strong and reliable evidence and alongside helping to convict criminals, its role in exonerating the innocent has been well documented. The term “forensic” means “for the courts”. Its use in workplace investigations is generally limited to serious cases that may end up in court.
11. Hearsay Evidence: Hearsay evidence consists of statements made by witnesses who are not present. While hearsay evidence is not admissible in court, it can be relevant and valuable in a workplace investigation where the burden of proof is less robust than in court.
12. Physical Evidence: As would be expected, evidence that is in the form of a tangible object, such as a firearm, fingerprints, rope purportedly used to strangle someone, or tire casts from a crime scene, is considered to be physical evidence. Physical evidence is also known as “real” or “material” evidence. It can be presented in court as an exhibit of a physical object, captured in still or moving images, described in text, audio, or video, or referred to in documents.
13. Prima Facie Evidence: Meaning “on its first appearance” this is evidence presented before a trial that is enough to prove something until it is successfully disproved or rebutted at trial. This is also called “presumptive evidence”.
14. Statistical Evidence: Evidence that uses numbers (or statistics) to support a position is called statistical evidence. This type of evidence is based on research or polls.
15. Testimonial Evidence: One of the most common forms of evidence, this is either spoken or written evidence given by a witness under oath. It can be gathered in court, at a deposition or through an affidavit.
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Your first step is to contact an experienced intellectual property attorney that can help you determine the best course of action and guide an investigation. You have several options for dealing with the employee. All but one could create difficulties in the future.
A written warning, probationary period, and repayment all sound like appropriate disciplinary measures until you think about the impact on the rest of your employees. Not only will these remedies send a message that the theft was not serious, but you are also allowing someone who stole from you once to have the opportunity to do so again.
Termination, as harsh as it sounds, is your only real choice for employee theft. To build the case for termination you need to:
Gather evidence. Video and digital evidence are strong. A witness is also appropriate.
Audit the computer files and financial records.
Preserve documents, computer files, and emails.
Maintain a chain of custody to prove there was no tampering with the evidence.
If you perform interviews or any other investigation, document everything you learn. You will need it when you report the theft to the police and to make an insurance claim to recover losses.
Your attorney can help you with civil liability even if the theft is not prosecuted as well as assist in the termination process, especially if the employee is a union member or part of a collective bargaining agreement.
As an entrepreneur or small business owner, learning that an employee has stolen from your company can feel like a threat to your child. Take measured steps to gather evidence to prove the wrong-doing on the advice of your attorney. To prevent future issues, put a policy and basic accounting controls in place.