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.
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.
On the other hand, the law considers the worker's 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.
Dos and Don'ts
Privacy is a highly volatile area of law. Every year, workers bring lawsuits claiming that an employer invaded their privacy by conducting an improper search. Because there are no legal guarantees in this area of law, you would be well advised to talk to a lawyer before conducting any but the most routine searches. Here are a few considerations to keep in mind:
- Search only if necessary. In many companies, there will rarely be a need to search. Unless your employees routinely handle large amounts of money or valuable and easily-hidden items (such as prescription drugs or jewelry), you may not need to search at all. If you do want to conduct a search, make sure you have a legitimate business reason (theft, for example).
- Verify first, if possible. Before you conduct a search, check available sources of information (such as a security camera or time cards) to rule out possibilities. If you search an employee whom you suspect of theft and you could easily have discovered that the employee was not in the area where the theft occurred, for example, you might get into trouble.
- If you plan to search, have a policy. If you warn your employees in advance that certain areas (like desks or lockers) might be subject to search, employees will have lower expectations of privacy in those areas -- and less reason to complain about a particular search.
- Don't conduct random searches. Courts tend to frown on employers who conduct random searches of their workers, even if the employer's policy puts employees on notice of this possibility. These searches, particularly if conducted when the employer has no reason to suspect any wrongdoing, can get employers into trouble.
- Never search an employee's body. Some employers become so zealous in their investigative efforts that they want to conduct physical searches of their workers for contraband or stolen items. This is always a bad idea. Your worker has a very strong privacy interest in his or her own body. If you have strong and legitimate concerns, consider calling the police to take it to the next level.
- Restrooms and changing rooms are generally off limits. Most workers legitimately expect that they will not be filmed while using the toilet or changing their clothes. This expectation is highly reasonable. If you must monitor these areas, warn your employees and monitor only to the extent necessary. And make sure your state's law doesn't prohibit this type of surveillance.
- Consider the worker's privacy expectations. Before you search, think about whether an average worker would consider a particular space private in your workplace. Do your employees routinely lock their desk drawers? If so, they might have higher privacy expectations. On the other hand, if no one has an assigned desk in your office, or if workers routinely use each other's desks, an unlocked drawer is not as private.
- Don't hold employees against their 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 a bad idea. 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.
For More Help
The Essential Guide to Workplace Investigations: How to Handle Employee Complaints & Problems, by Lisa Guerin (Nolo), explains how to conduct an investigation while avoiding privacy violations.