Can your employer search your desk drawers or locker? What about your purse or backpack, or even your pockets? Employers have the right -- and sometimes, the legal obligation -- to investigate misconduct and workplace problems. At the same time, employees don't forfeit all privacy simply by coming to work. Generally speaking, reasonable searches that have a legitimate purpose and are limited in scope don't violate the law.
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.
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 an employee has a gun in her desk drawer and has threatened to use it has a strong basis for a locker search.
On the other hand, the law considers whether the employee had reasonable expectations of privacy. A worker who legitimately expects, based on the employer's policies, past practice, and common sense, that the employer will not search certain areas has the strongest argument here. For example, a worker has a high expectation of privacy in the employee restroom or a changing area, particularly if the employer has not warned workers that these areas might be monitored.
How do courts decide? They have to consider the relative strengths of these two competing interests. The more steps an employer takes to diminish workers' expectations of privacy and the stronger the employer's reason to search, the more likely a court is to find the search legal.
Because of the balancing test described above, each workplace search case is decided on its own facts. Nonetheless, there are a few basic rules that always apply: