Employers Right to Search vs. Employees Right to Privacy

By Laura Pokrzywa

One of your managers reports that an expensive tool is missing from the shop floor. It was in place this morning, but shortly after lunch it’s nowhere to be found. Can you search the work areas and bags of employees from that area?

If you have ever attempted to search an employee’s desk, locker or emails, you may have been questioned about your right to conduct that search. “What about the employee’s ‘right to privacy’?” In fact, there is no clear cut “right to privacy” when it comes to searches. (There is, however, clear mandates protecting an employee’s private health information. But that’s a whole other topic.) When protesting workplace searches, some people will incorrectly cite the Fourth Amendment of our United States Constitution which protects citizens from unreasonable searches by government. But it says nothing about private employers searching their own employees on company premises.

4th Amendment to the U.S. Constitution – Search and Seizure (Ratified 12/15/1791)

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That being said, employers most certainly do not have free reign over employees while they are on company property. Though the laws remain vague, court decisions have laid some clear guidelines for employers to follow.

The courts continue to evaluate workplace privacy claims on two key criteria: the employer’s legitimate justification for conducting a search vs. the employee’s reasonable expectation of privacy. For example, in the question above, the missing tool could be considered a legitimate justification for a search, especially given it went missing that same day. In addition, the employer would have diminished the employees’ expectations of privacy if  it had a written policy warning employees of the possibility of searches and clearly stating what employer-owned property may be subject to a search.. Such considerations would probably put the employer on solid ground in the courts’ eyes. However, if the same company had never published a written policy regarding searches, or had never conducted searches in the past, it could be argued that those employees had a reasonable expectation of privacy and that could go against the employer in court.

Since you can’t always be sure of your ground, it is best to be very careful before you begin any investigation. Here are some best practices to keep in mind:

·         Before you search, consider the potential consequences vs. the potential payoff.  Does this involve an immediate threat to employees’ safety? Is it worth the possible legal issues? Is it worth the impact it may have on employee morale?

·         Make sure you have a legitimate business need to conduct the search.

·         Reduce employees’ expectations of privacy.

o    Have a written policy in place! This isn’t the first time we’ve said this. And it won’t be the last. Written policies establish expectations and procedures. This one should clearly state that the company reserves the right to conduct searches if the company deems it necessary.

o    Supervisors should have a copy of keys or combinations to locks used on an employee’s locker, desk, files, etc. Otherwise, they will make a reasonable assumption that the company has no intention of ever accessing that locker or desk.

o    Be sure to post clear warnings in any areas using surveillance cameras.

·         Turn over every stone before you search employees. Don’t arbitrarily search everyone’s areas if possible. In the case of theft, for example, check attendance logs and work schedules to narrow the population of employees who might have had access or opportunity.

·         Never touch employees without their consent! If you suspect an employee is hiding something on his/her body, do NOT insist on a pat down and do NOT attempt to take any bag that may be “attached to his/her person”. If it comes to that, let police handle it. And remember, you cannot hold employees against their will (i.e., make them wait until police arrive or until someone confesses).

·         Know your state’s laws: Some states have laws that give employees very specific privacy rights (such as limiting the use and location of surveillance cameras or one-way mirrors).

·         Ask Human Resources or another member of management to witness any searches.

Though a search of employees’ emails, desks or other property is certainly a last resort, it is sometimes necessary. Like so many other things, it is best to prepare for such an event before it happens. If you need help with a written policy or have any questions regarding workplace investigations or searches, please contact us through our website, www.eastcoastrm.com, via email at hrcounselorscorner@eastcoastrm.com or by calling us at 724-864-8745.

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