Company searches of employee space and property are sometimes necessary to preserve safety, workplace confidentiality, and other important company policies. Employers often wonder what is fair game for a search if they suspect something is amiss, or if they want to be proactive about policy enforcement. The answer is, inevitably, “it depends.” In this article, we will discuss factors for determining the proper scope of a search, as well as the correct procedures for carrying one out.
The Reasonableness Standard
Federal and state laws give us some guiding principles on whether an investigation is legal in the first place: it is generally so if (1) there is a reasonable basis for suspicion that the particular employee has committed a breach of policy, or (2) no reasonable expectation of privacy in the item or location exists. In the employment context, there is no need for a warrant or probable cause to conduct a search.
Expectations of Privacy
Unless a company space is clearly provided for the private use of the employee, such as a bathroom or changing room, the company typically has an unfettered interest in its property, so there is no expectation of privacy by the employee. Company items with no expectation of privacy might include lockers, desks, and company phones or vehicles.
In all cases, an employee has an unqualified expectation of privacy in his or her own body. Cavity searches, undergarment searches, and, in most cases, pat-downs are off limits. If the situation is that delicate and the suspicion that heightened, your management staff should contact law enforcement.
Somewhere in the middle, an employee has a high but qualified expectation of privacy in his or her own personal belongings. This expectation may be weakened by the company’s workplace search policy if the policy identifies with specificity personal property that is subject to search. Remember, however, that the policy must be tailored to the interests that the company seeks to protect (and at this point, we’re really talking about “reasonable suspicion,” which we delve into below).
Reasonableness of Investigation
If an investigation is legal, the determinative question for whether the search of any particular space is proper, is whether reasonable suspicion exists that evidence may be found there. Reasonableness is fact-sensitive and varies by the case, but the prescient point is that the search itself should be tailored to its purpose and the nature of the suspected misconduct.
Here are some factors to aid in considering the reasonableness of a search:
- Whether the search was on, or of, company or personal property
- Whether the search was of a space or item in which the employee had a diminished expectation of privacy
- Whether there is credible evidence of misconduct
- Whether the search is for a limited purpose and the search scope is limited to that purpose
- Whether the employee is public or private (public employees have greater protection under the 4th Amendment; these constitutional protections have been extended to private employees in nine states, not including Ohio)
- Whether the search was conducted by authorized personnel
- Whether the employee was notified of the search beforehand, and whether he or she acquiesced to it
- Whether there was a clear written policy informing workers about workplace searches
The Search Policy and Procedure
In most cases, a well-written workplace search policy can set employee expectations for the course of employment. Your policy should be drafted by your human resources department or an attorney with experience in HR and employment law.
As a private company, you set the rules for the most part. Employees are employed subject to your search policies – so long as the policies are constitutional and the employees are apprised of them upon hiring and as changes are made. But as we discussed, the policies should be in service of your legitimate company interests – safety, confidentiality, etc. – and should be reasonable in all respects.
Once you have your policies in place, assemble the proper team to administrate. Designated HR personnel should be put in charge of investigating claims and carrying out searches. It’s best practices to have multiple people perform searches, with at least one recording what the search uncovered. (Recordkeeping helps avoid liability if something is later reported missing.) It’s also a good idea to be mindful of gender considerations for sensitive searches; a search should be conducted by at least one person of the same gender in case private or sensitive items must be searched.
Reports should include things like the reason for the search, the personnel conducting the search, the date and time of the search, the subject matter of the search, what was found, which items were seized, whether the employee was present, and what instructions were given to the employee following the search. All of this should be delivered to the HR or risk management director for evaluation.
Before developing a search plan, you should first verify available evidence of misconduct wherever possible. In developing the search protocol for any particular offense, consider the worker’s privacy expectations and map out your strategy accordingly. Always ask for written consent immediately before beginning; you should communicate the investigation process to the employee so that he or she is fully informed.
Finally, if your policies are well-drafted, feel confident acting accordingly, but never physically detain an employee or use physical or verbal threats or coercion to enable a search. Refusal to cooperate can be met with additional disciplinary action, but be careful not to cross a line.
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