Under the law, all employees have a "reasonable expectation of privacy" which prevents employers from searching employees wherever and whenever the employer wishes. What is considered reasonable depends on factors like the type of employment, whether there is evidence of misconduct, and the scope of the search. Employees have a greater expectation of privacy with respect to more intrusive searches, including searches of their bodies, clothing, purses, and briefcases. Reasonableness is determined on a case-by-case basis and will depend on the particular facts of a given search. If you think you have been subjected to an improper workplace search you should contact an attorney in your area to discuss the particular facts of your case and how the law might protect you. To learn more about workplaces searches, read below:
In a perfect workplace, there would never be a need for employers to search their employees. However, employers have an interest in keeping their workplaces free from drugs, illegal weapons, and alcohol, and in eliminating any employee theft which may be occurring. Still, many employees believe that the law should protect individuals and their personal belongings from an employer's intrusive searches.
The courts have struggled to balance these competing concerns in a way that recognizes the legitimacy of both sides' interests. Cases involving the violation of privacy rights through unreasonable searches are often extremely factual and tend to be decided on a case-by-case basis.
The answer to this question depends on what type of work is involved. Public employees have a greater protection of privacy provided by the United States Constitution. While public employees have the protection of the Constitution, at least nine states (Alaska, California, Florida, Hawaii, Illinois, Louisiana, Montana, South Carolina, and Washington) have provided those same rights regarding privacy to private employees. In many states there are no laws that explicitly say what employers are and are not allowed to do when performing a workplace search.
The Fourth Amendment of the United States Constitution, which guarantees that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated," has been extended by the U.S. Supreme Court to protect public employees against searches and seizures of themselves and/or their property. In order for you to be protected by the Constitution, you must demonstrate that the search the employer conducted was an invasion of your own reasonable expectation of privacy.
Your employer is not required to have a warrant or probable cause to conduct a search . Your employer need only have a justifiable reason related to the nature of employment, such as an interest in promoting efficient operation of the workplace.
A reasonable expectation to privacy in the governmental setting usually depends on the office practices and procedures. The U.S. Supreme Court has acknowledged that public employees have a heightened expectation of privacy regarding such items as purses, briefcases, and closed luggage brought to work.
Government employers can weaken your expectations of privacy by informing you that you do not have an expectation of privacy, or that your desks, computers, and lockers may be searched. However, while legitimate workplace policies or regulations can reduce your expectations of privacy, the government may not condition your job upon your willingness to comply with unconstitutional conditions.
Here are some of the factors that you as a public employee must consider in order to determine whether or not your governmental employer has violated your right to privacy:
- Is there credible evidence of misconduct? For example, a tip by a credible coworker that an employee has engaged in misconduct may be enough for an employer to initiate a search.
- Is the scope of the search limited? For example, the employer's search should be limited to locations where the item being sought is likely to be stored. One court upheld a search for pornographic pictures in an employee's desk, storage unit, and file cabinet, since those places were the most likely place an employee would store the photos.
- Is the search of an accessible area in which the employee has a diminished expectation of privacy? For example, is the employer searching an area that is exclusively for the employee's own use, or do other employees have access to the area? One court upheld a search of a fire chief's office where official records and maintenance equipment were kept, holding that the chief's privacy expectations were diminished when others had the right to access items stored in his office.
- Is the search for a limited purpose? For example, an employee who was on leave and asked to clear out his desk was determined not to have any expectation of privacy when a supervisor searched the desk for any remaining work-related items, and found a computer disk with incriminating information.
In order to determine whether or not your employer in the private sector has violated your right to privacy, there are several factors to consider:
- What type of employment is involved? For example, an employer is permitted to search your clothing or possessions to determine whether there has been theft of company property, so in the retail environment, it is customary to check an employee's belongings to prevent theft of merchandise. It is less customary to do so in an office setting where an employee's access to easily concealed and/or expensive items is limited.
- Is there a legitimate business reason for the search? For example, an employer has an interest in recovering an item that it believes to be stolen, or preventing workplace violence by ensuring that employees are not bringing weapons into the workplace. However, courts are more likely to find that an employer who engages in random searches without any reasonable suspicion that an employee has violated the law or any workplace policies is violating its employees' privacy.
- What is being searched? For example, when employers have searched employees' locked file cabinets, desks, or personal papers, courts have found these items may be searched so long as there was authority to search. However, in a case where the employees were expected to pay for locks to guard their lockers, the court found that the employer had violated the employee's right to privacy by searching a locked locker. In that instance, the employee had a reasonable expectation of privacy.
- For what is the employer searching? For example, if the missing item was a computer, the employer might be justified in searching employee lockers and cars, but not employees' purses, pockets, or clothing, since the item sought is too large to be concealed on the employee's body or in the employee's personal effects.
6. Even if an employee has notice of the search, is it still legal? What happens to the employee's right to privacy?
Employers now typically safeguard their intrusive actions by announcing clear policies regarding random, unannounced searches. Although your right to privacy may be diminished when your employer gives you notice of a policy regarding searches, notice does not extinguish the right. Many courts find searches to be illegal, even with notice, when an employer has engaged in socially unacceptable conduct by demonstrating a complete disregard for the search's effect on an employee. This typically occurs with strip searches, as workers have a stronger privacy interest in their own bodies.
While private employers can compel, as a condition of employment, your consent or acquiescence to employer searches, a governmental employer could never condition your employment on your willingness to consent to an unconstitutional search.
7. If I think I have grounds to sue my employer for a search that violated my privacy, what do I do?
In this situation, it is important to consult with an attorney to determine what rights you may have. The violation of privacy rights through an unreasonable search is often extremely factual and tends to be decided on a case-by-case basis. Depending on the issue involved, you may need to quickly make a strategic decision whether to challenge the process in court. There may be fast-approaching deadlines, which will affect your legal strategy, so it is important to consult with an attorney immediately, to preserve the widest range of options for yourself.
If you are a member of a union and/or a public employee, you may also want to speak with a shop steward, union official, or other employee representative to discuss whether you may have grounds for a grievance or lawsuit.