Workplace Searches 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.  1. Why would my employer want to search me at work? Isn’t that a violation of my privacy? 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. 2. Is it legal for my employer to search me or search my belongings? The law generally states that employers must have a reasonable basis for a search, and the search must be confined to non-personal items. Searches of personal items, like handbags, generally cannot be searched unless the employer has a valid reason to do so. The answer to this depends on state laws. Most states are single-party consent states, meaning only one person in a conversation needs to consent to it being recorded. For example, it is legal for an employee to knowingly record a phone call with another employee in a single-party consent state. If an employer got one employee to consent to a phone call between them and another employee being recorded, recording would be legal despite the second employee not consenting. Multiple states require both parties to consent to being recorded. This would require an employee to get permission from another employee they are speaking with before recording their conversation. Two-party states are: California, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Michigan lies in a gray area, not fitting neatly in the box for either single-party or two-party consent states. Although it has historically been a single-party consent state, litigation in recent years has courts disputing the meaning of Michigan’s statute, MCL 750.539c. The law seems to make Michigan a two-party consent state, but a major exception undermines this assumption. In gist, Michigan allows one-party consent only if the consenting party is a part of the recorded conversation. So, it would not be legal for an employer to record a phone call between two employees if they only get permission to record from one of them. If none of the recorded parties are aware that a phone call is being recorded, this may constitute wiretapping – which is subject to different laws. 3. How does the Constitution protect public employees? 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. What would be a reasonable expectation in your home may not be in the workplace. At work, employees are assumed to have less privacy than they would have elsewhere. While it would be reasonable to expect that an employer can’t search someone’s personal belongings at home, it would not necessarily be reasonable to expect an office cubicle or work desk to be private. 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. 4. Under what circumstances can a public employer search an employee? A reasonable expectation of 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 … Continue reading Workplace Searches