December 12, 2017
Let’s say a retail store is experiencing a high volume of theft. It suspects that some of its inventory loss may be due to employee theft. So it decides to start searching its employees when they leave the store. This is being done randomly, and is not necessarily based on individualized suspicion of particular employees. Can the employer do this? Is it legal? If so, exactly how far can an employer go in searching its employees?
There is a huge difference in this area of the law between government employers and private employers. Government employers are subject to the fourth amendment of the United States Constitution, which prohibits unreasonable searches and seizures. This means that a government employer normally may not search an employee, or his/her personal effects, without “probable cause” to believe the employee has done something wrong.
Private employers, however, are not bound by the fourth amendment. They therefore have a much freer hand when it comes to employee searches. Since the worksite is the property of the employer, it ordinarily has the right to inspect any part of that property – desks, lockers, computers, etc. – when it sees fit to do so. This is not an unlimited right, however. The employer cannot, of course, go into areas where its employees have a justifiable expectation of privacy, such as bathrooms.
But what about searching employees’ purses or bags or briefcases while the employees are on the employer’s property? This is a little trickier. If an employer has clearly informed its employees, in advance of any searches, that their personal belongings may be subject to search while they are on the employer’s premises, then it is likely that the employees do not have a “reasonable expectation of privacy” with respect to those articles when they are at work. Accordingly, under those circumstances the search of an employee’s personal effects typically will not violate the employee’s rights. Employers must clearly communicate, however, that they reserve the right to conduct these searches. This can be done in an employee handbook, or by clearly posted signs in the workplace, such as in a break room or other common areas.
If employees are not informed in advance that their personal effects may be searched while on the employer’s property, an employer’s search of such items as purses or briefcases might be considered illegal by a court.
Employers should keep in mind, however, that just because it can conduct a particular search doesn’t mean that it should. As a matter of good employee relations, employers should always be respectful of their employees, and should think carefully before subjecting them to searches that a reasonable person would consider unduly intrusive.
If you have questions or concerns about your rights in this area, whether as an employer or employee, be sure to consult competent legal counsel before taking any action or making any decisions.