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.
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.
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.
Know Your Rights
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:
- The more intrusive the search, the stronger reason an employer must have. We have a greater expectation of privacy when it comes to purses and bags than we do for the things we keep on top of our workspace, in plain view of anyone. By the same token, we have a much greater expectation of privacy in our bodies and the clothing that covers them than in almost anything else. An employer that wants to search more private areas needs a more compelling justification -- and there will virtually never be sufficient reason for an employer to require a full body search or surveillance of changing .
- Employers can take steps to diminish your expectations of privacy. If your employer has a policy informing employees that their desks and lockers are subject to search, for example, you will have a harder time convincing a court that you had a reasonable expectation of privacy in those areas.
- Random searches are less likely to be upheld. When an employer conducts a random search, it is essentially admitting that it has no basis to suspect a particular employee. This adds up to less weight on the employer's side of the balancing test scale.
- An employer cannot hold you against your will. Some employers detain workers in connection with a search -- to keep the worker out of the area being searched, for example, or to exert a little pressure on the worker to consent to a search. ("No one is leaving this room until you show me what's in your backpack!") This is grounds for a lawsuit. Under a legal theory called "false imprisonment," an employee can sue an employer who leads the employee to believe that he or she is not free to leave.