Workplace Searches

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 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.

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.

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 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.Visit our page on public employees’ rights to learn more about government workers.

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. Bodily searches and strip searches also violate an employee’s right to 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.

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.

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.