F. Searches

Employers use a variety of techniques when they suspect a worker of misconduct. These include:

• Searching the employee's office or locker without his/her knowledge or consent;

• Requesting the employee to open his/her briefcase or package upon leaving a company facility; and

• Conducting a "pat-down" search of the person.

The law regarding employee searches involves a careful balancing of the employer's right to manage a business with the privacy rights of employees. The Fourth Amendment to the United States Constitution protects all persons against unreasonable search and seizure of their persons, homes and personal property, and this doctrine applies when the employer is the government. Most private employers, however, are exempt from this doctrine (unless the private employer does extensive business with or is heavily regulated by the government) and generally are permitted to use a variety of techniques when suspecting a worker of misconduct. In fact, many arbitrators routinely uphold disciplinary actions against employees who refuse to permit a search of toolboxes or lockers on company premises, and even off the premises at a hotel or in a worker's garage. Although each case is decided on its own facts, the law generally states that searches are permissible if an employer has a reasonable basis for suspecting the employee of wrongdoing and the search is confined to non-personal areas of his/her office. The office and documents relevant to company business are considered property of the employer and can be searched anytime.

The legitimacy of any workplace search often depends on whether the employer provided advance notice, whether the search was justified under the circumstances, whether the search was done in a reasonable manner, and whether it was conducted in clearly designated company-owned property areas. One court employed a two-step balancing test in weighing the privacy rights of workers against the legitimate interests of employers. Under the court's analysis, a search is permitted provided (1) it is justified at its inception (i.e., if the employer has reasonable grounds for suspecting that the search will turn up evidence of work-related misconduct, theft, or suspected drug or alcohol use while on company premises, or that the search is necessary for a non-investigatory work-related purpose, such as to retrieve a file) and (2) if the search is reasonable in scope (i.e., if the measures adopted are related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct being investigated).

Clearly visible personal items cannot be searched and employers cannot conduct a search if there is no reasonable ground for suspicion. Whether searches of an employee's briefcase, locker, or packages are legitimate depends upon whether the employee had a reasonable expectation of privacy.

Counsel Comment #71: You can establish policies which make your employees' privacy expectations seem unreasonable. They include:

• Posting signs throughout your plant reminding workers that personal property is subject to search;

• Distributing memos stating that surveillance measures will be taken on a regular basis;

• Preparing waivers to be signed by all employees notifying workers that lockers are subject to random, unannounced searches by authorized personnel and that failure to cooperate and consent to such searches may result in immediate discipline including dis- charge; and

• Disseminating handbooks stating that personal property is subject to search in company lockers.

Such measures may reduce claims of illegal privacy invasions. For example, with such policies in place, one court found that packages could be searched. Another ruled 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 work 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 stored in a company locker. The court ruled that this violated the employee's reasonable expectation of privacy since she was permitted to use a private lock on her locker and there was no regulation authorizing searches without employee consent.

TIP: When searches are conducted they must be imposed on all employees (not confined to one group of workers such as Afro-Americans) to avoid charges of discrimination; they also cannot violate constitutional or tort standards (e.g., by requiring employees to submit to unannounced body or strip searches).

The expectation of privacy is greatest when a pat-down or other personal search of an employee is conducted and knowledgeable employers are reluctant to conduct personal searches, especially when random or done without specific, probable cause with respect to the individual involved.

In one case, an employer's security guards detained and searched a worker leaving a plant because he was suspected of stealing parts. According to testimony at the trial, the guards yelled at and shoved the employee. 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; also, no stolen parts were found on his person and the search was conducted while many people were leaving the plant, causing him much emotional upset and embarrassment.

Counsel Comment #72: Employees should be advised that their offices, desks, lockers and other company property may be searched at any time. After implementing such a policy, you should conduct regular random searches to demonstrate the company's commitment to enforcement. (However, instruct staff not to open any mail marked "personal.") If any employee refuses to consent to a search, prepare a statement acknowl- edging the refusal (signed by the employee if possible) and remind the worker that such conduct may jeopardize his job.

TIP: Employees who believe they are victims of illegal searches are often asked the following questions by labor lawyers:

• 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 forcefully grabbed, jostled, struck or held?

• Were you injured?

• 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?

• Did the employer search you in front of non-essential third parties and, if no wrongdoing was discovered, was your business reputation harmed by such action?

If the employee can answer yes to any of the last nine points, he/she may have a strong case, especially if the worker was fired, placed on probation, suspended or given an official reprimand after the search, even though he/she did nothing wrong. The tort actions most frequently alleged as a result of an improper employee search include assault, battery, defamation (in particular, slander per se), false imprisonment, invasion of privacy and abusive discharge. Since lawsuits related to searches frequently arise because of improper behavior, and since damages are routinely awarded by juries against companies in the six figures, review all of the foregoing strategies with counsel before implementation and be sure to act properly.

         

From Hiring to Firing: The Legal Survival Guide for Employers
Copyright © 1995 by Steven Mitchell Sack