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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!

6 thoughts on “The Limits to an Employer’s Search”

  1. A company is on a 2 day retreat. A an employee left her purse on her bed in her lodging. The management discreetly went in her lodging room and went through her purse and found a bag of “cannabis” and confiscated it.
    Over 2.5 hours later the management told her they went through her purse and found marijuana because of a strong odor. They confiscated the contraband and discarded it before telling her and gave her a 2 week suspension. The employee did not consent to any searches and there was no agreement to random workplace searches.
    What should happen?

  2. What is the statute in nys for employee searches? I find it hard as a peace officer to be searched via both walk through metal detector as well as hand held.
    My concern is i have never shown any reason to be searched and find it unreasonable to be searched coming on duty and to be searched coming into turn in rwquired paperwork and to punch out .
    Without even entering the compound .what are the statute requirements for employers to follow in regards to general random searches of security services staff in a correctional facility in nys.how do i find this information

  3. Is it legal the search a purse, bag, jacket with informing the employee? And is it legal to open the employees car door without permission ?

  4. One of the supervisors opened my locker with out me being there or given him permission.

  5. I work as a nurse in a healthcare facility that utilizes walkie talkies along with a call light system. Our Administrator went thru our private lockers in the break room looking for missing walkie talkies without advance notice and without staff present. Any locker that was unlocked, she rummaged thru. Our policy handbook states that we may be searched, which is fine. But, can she legally rummage thru personal lockers (our names on our lockers) without us giving permission or even knowing about it? The only way I found out she went thru all lockers, was because a staff member saw her doing it. When they asked her what she was doing, she stated “I have a right to search lockers”. Please advise. p.s I guess I need to buy a lock for my locker. I wouldn’t have minded letting her look thru my locker if she would have asked.

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    Steven Stack helped me with an unfair severance package.I had one session with him and he helped me get triple my severance and additional bonuses by taking his advice and reading his book. If you have an unfair severance, his time and advice is worth it.Steven does good work. He's the real deal. I'm so grateful for his generosity with his time, and helping people in cases big and small.
    I had the pleasure of working with Mr. Steven Mitchell Sack, Esq. this year.Steven is honest with his clients, sets realistic expectations about a case, and always follows through on his promises.I was referred to Steven by a friend of mine, his former client, and now I myself can highly recommend Steven to anyone seeking legal help in labor relations.
    Steven was straight to the point, thorough and extremely respectful regarding all matters surrounding my employment termination. As a young person who had never hired a lawyer before, I am very thankful that I found Steven and that he was on my side. Steven valued my concerns and was a pillar of education and support for me. Steven Sack is the attorney you want to represent you, I cannot thank him enough for all of his help.
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    Steven was so helpful and patient. I had never been terminated from a job or worked with a lawyer before, so I had a lot of questions and anxieties. He not only explained my rights and helped ease my concerns around the situation, but he was even able to negotiate a better severance contract for me. He is incredibly responsive and I look forward to reading his book.
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    I had a great experience with Steven Mitchell Sack. He was very empathetic, detail oriented and extremely knowledgeable of employment law. He returned my calls and e-mails quite promptly, and was very clear and honest with what to expect. When it came to negotiating my severance package, this attorney came through for me. He’s tough, but knows how to talk to lawyers, particularly in my case as we were dealing with a huge company. Thank you Steve, I’m so appreciative of your help.
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    Steven pulled victory from the clutches of defeat. My situation was grim and I had no leverage in negotiating my severance. Steven stepped in, didn't over promise, and got me much better terms. He's great. An absolute miracle worker.
    Mr. Sack helped me get a severance when my employer had no intentions of providing me with one, after I was terminated. He tells you the truth; no bs, even though it might not be what you want to hear. He always answered my calls personally and exlpained next steps in details. He fought for my rights, and I'm very pleased with the outcome. Highly recommend!!
    Cenk Dölek
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    Steven Sack is not only very knowledgeable in his profession, he is also a good person, someone who believes in and lives by certain values and principles. He was very professional, guided me as I needed, a true expert by all means. Looking forward to reading his latest book!
    Ricky Sharma
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    Steven is an incredible person that also happens to practice his craft on a level that will impress you out the gate. Hiring him and talking to him will immediately give you peace of mind. One thing to be careful of is that after working with him you will start expecting more from every other lawyer you ever work with!
    David LaCombe
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    Steven Sack exceeded my expectations when he represented me in negotiating the terms of my severance. Steven is incredibly competent, and what I appreciate most about him is that he is a gentleman.Steven is punctual, thorough and he always kept his word. If he says he is going to do something, he does it.I recommend Steven without exception. He earned my complete confidence.
    J Guttenplan
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    Steven is amazing. When working with him he is easy to understand, transparent, and does what he says he's going to do. He actually answers his phone when you call and gets back to you promptly -- a quality that's becoming quite rare these days!I'm very glad I was referred to him.
    Eddie Vargas
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    I had the absolute pleasure of being represented by Steve and it was definitely more than a great partnership. He was with me throughout the entire process and the communication was absolutely stellar. Highly recommend Steve and his professional skill should you ever be in need of legal counsel or representation. Thank you Steve!
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    Steven is a highly competent lawyer and extremely effective at what he does. Steven was referred to me and I will gladly refer him to others in the future.
    Steven is an incredible attorney and I highly recommend him!He always made himself available whenever I needed him, and he did exactly what he said he was going to do. He also stayed on top of my case with diligence, and consistently followed up with me regarding updates. I found him to be straightforward, honest and very knowledgeable. He is also a very nice guy and made me feel like someone was on my side and was going to help, and he gave great advice on how to move forward. I will certainly reach out to him if I ever need him again. Thanks greatly Steven!Vanessa S.
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    Steven is fantastic. Efficient, concise and caring. Would 100% recommend.
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    Steven Sack was very Professional, Sympathetic and truly cares about people he was very vital in helping me in resolving my issue Steve Sack truly loves his job & stress free. He was extremely responsive worked quickly, negotiating on my behalf. And it was worth it! I would definitely use him again with no hesitation!
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