Workplace Searches: Dos and Don'ts
Here are some tips on how to conduct a search without violating your workers' privacy rights.
It happens to even the best employers: a sudden rash of thefts, a worker threatening violence, or some other possible misconduct or illegal activity in your workplace. Your first step must be to investigate the situation. (For tips on how to conduct an investigation, see Investigate a Workplace Complaint). As part of your investigation, you might even want to search a worker's desk or locker, install some kind of monitoring device (a camera or recorder, for example), or ask to look inside an employee's purse or backpack. How can you get the information you need without violating your workers' right to privacy?
Reasonable Expectations of Privacy
Although the U.S. Constitution includes a right to privacy and prohibits unreasonable searches, these protections don't extend to private (that is, nongovernmental) workplaces. Some states have laws that give workers certain privacy rights -- for example, the right not to have surveillance cameras in a restroom, or the right not to be viewed through a secret one-way mirror. (To find out about any privacy protections in your state, contact your state department of labor.) In many states, however, no law explicitly says what is and isn't allowed when it comes to searches in the workplace.
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This often leaves the matter up to the courts to decide. When judges evaluate whether a particular search is legal, they must balance two competing concerns. On the one hand, the law considers the employer's justification for performing the search: an employer with a valid, strong, and work-related reason for searching has the best chance of prevailing. For example, an employer who receives a complaint that a worker has a gun in his locker and has threatened to use it has a strong basis for a locker search.
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