The Limits to an Employer’s Search

An employer has certain rights to manage his/her business as he/she seems fit, and to ensure a safe working environment. However, an employee, as well as a private individual has certain privacy rights that the law protects. So where is the line drawn between what an employer is allowed to search for and where? And when does an employer’s actions cross the line regarding a search.

As an employee, it is vital to know your rights and to know what to look out for as possible violations by an employer. Here’s a section of my book “The Employee Rights Handbook” that deals with this area of the law and gives you a glimpse into what kind of questions you should be asking yourself to ensure your employer’s actions are legal. Get informed and know your rights!

Employee Searches

The law regarding employee searches involves a careful balancing of the employer’s right to manage his or her business and the privacy rights of employees. For example, the Fourth Amendment to the United States Constitution provides protection for all persons against unreasonable search and seizure of their persons, homes, and personal property, and this doctrine applies when the employer is the government. However, most private employers are exempt from this doctrine (unless the private employer does extensive business with or is heavily regulated by the government) and are generally permitted to use a variety of techniques when suspecting a worker of misconduct. These include searching the employee’s office or locker without his knowledge or consent and requesting the employee to open his briefcase or package upon leaving a company facility.

Although each case is decided on its own merits, the law generally states that office searches are permissible if an employer has a reasonable basis for suspecting the employee of wrongdoing and the search is confined to nonpersonal areas of his or her office. The reason is that the office and documents relevant to company business are the property of the employer and can be searched anytime.

However, clearly visible personal items cannot be searched, and employers cannot conduct a search if there is no reasonable ground for suspicion. Legitimate searches of an employee’s briefcase, locker, or packages also depends upon whether the employee had a reasonable expectation of privacy.

The absence or presence of any regulation or policy placing employees on notice that routine searches would be conducted is the primary factor in determining whether or not searches of employees or their work areas or property are legal. For example, when signs are posted throughout a company reminding workers that personal property is subject to search, when memos are distributed stating that surveillance measures will be taken on a regular basis, and when handbooks are disseminated stating that personal property is subject to search in company lockers, case decisions indicate such measures reduce claims of illegal privacy invasions, particularly when such policies explain the necessity for conducting searches, set forth procedures minimizing personal intrusion, and advise employees that their refusal to cooperate may lead to discipline or discharge.

With such policies in place, one court found that packages may be searched. Another court decided that searching vehicles on company property was legal. One court even found a search valid on the basis that an employee had voluntarily accepted and continued employment notwithstanding the fact that the job subjected him to searches on a routine basis. This, the court concluded, demonstrated his willingness and implied consent to be searched (thereby waiving the claim that his privacy rights had been violated).

However, when the employer does not have such policies in place, the lack of published worker rules and regulations may actually encourage an expectation of privacy claim. For example, in one case the employer searched an employee’s purse, which was contained in a company locker. The court ruled that this violated the employee’s reasonable expectation of privacy because she was permitted to use a private lock on her locker and there was no regulation authorizing searches without employee consent.

You should also recognize that the expectation of privacy is greatest when a pat-down or other personal search of an employee is conducted. Knowledgeable employers are reluctant to conduct personal searches, especially if they are random or done without specific, probable cause with respect to the individual involved. In one case an employer’s security guards detained and searched an auto worker leaving a plant because he was suspected of stealing auto parts. According to testimony at the trial, the guards yelled at the employee in addition to shoving him. Although serious inventory shortages had been reported in the area where the employee was seen wandering shortly before leaving the plant, he was awarded $27,000 in damages after proving he had been singled out and treated unfairly by being subjected to the search and no stolen parts were found on his person during the search.

If you believe you are the victim of an employer’s illegal search, ask yourself the following questions:

• Have similar searches been conducted on you or your property before? If so, did you acquiesce in the search?
• Have similar searches been conducted on other employees?
• Were you given a warning that the employer intended to conduct a search?
• Was the object of the search company property?
• Did the search have an offensive impact? Were you grabbed, jostled, struck, or held? Were you coerced, threatened physically, or mentally abused in order to make you cooperate?
• Were you held against your will? Were you so intimidated by the experience that you were afraid to leave?
• Were you chosen at random for a pat-down search with no actual suspicion of wrongdoing?
• Did the employer search your belongings in an area that was truly private?
• Were you stigmatized (e.g., fired) by a search when in fact you did nothing wrong?
• Did the employer search you in front of nonessential third parties, and was your business reputation harmed by such action?

If you answered yes to the last six questions, speak to an employment attorney immediately to discuss your rights. You may have a strong case, especially if you were fired, placed on probation, suspended, or given an official reprimand after the search and you did nothing wrong. The tort actions most frequently alleged as a result of an improper employer search are assault, battery, defamation (in particular, slander), false imprisonment, invasion of privacy, and abusive discharge. For example, if you are detained against your will during the search, you may be able to allege a valid cause of action for false imprisonment.

This happened to a checkout clerk who was accused of failing to ring up merchandise purchases. The employee was searched and interrogated by security personnel and told to accompany them to another location for additional questioning. At the trial the company proved that the woman failed to ring up purchases. However, a jury awarded the employee $25,700 on the grounds of false imprisonment, because the woman was never told she could leave the room where she was being questioned and was forced to remain there for several hours.

Such cases illustrate that you may have rights that are violated during or after a search. For example, you may be able to sue the employer for slander and invasion of privacy if a search is conducted in front of nonessential third parties in a way that is suggestive that you are a thief.

For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!