Employer holds the cards in most employee search instances

It’s not an uncommon scenario: Something goes missing in the workplace and the employer wants to search areas that an employee might consider private (such as his or her desk or locker).

Employers can typically search company property, even if it’s used by an employee. Essentially, the employer owns the property, so the employee doesn’t have a reasonable expectation of privacy. Nevertheless, employers should:

• Have a policy indicating that they reserve the right to conduct workplace searches so employees know what to expect.
• Have a legitimate business reason for conducting a search, such as looking for stolen company files or illegal drugs.
• Conduct a search in a reasonable manner that will not unnecessarily embarrass or humiliate the employee.

Where employers can go wrong

While employers generally do have the right to search their own property, they can inadvertently give that right away. This was the situation in a dated (but still relevant) case, Kmart v. Trotti (Texas, 1984).

In this case, an employee sued the company after it conducted a search of her company locker (lockers were provided for employees to store their personal effects). While the employer did provide the locker and offered padlocks, it also allowed employees to use their own locks and did not require that employees provide their combinations when personal locks were used. The employer also did not have a policy indicating that the lockers could be subject to a search at any time.

The employee had used a personal lock to secure her purse in a company locker. One day, the store manager conducted a search of her locker after security personnel reported suspicions that an unidentified employee had stolen a watch. The employee argued that because she was able to use her own lock and was not required to share the combination with her employer, she had a greater expectation of privacy with regard to her locker.

Even though the lockers were company property and the employer had a legitimate reason for conducting a search, the court agreed with the employee, saying that she had “demonstrated a legitimate expectation to a right of privacy in both the locker itself and those personal effects within it” by using her own lock with the employer’s consent.

Searching an employee

What happens when an employer suspects that a missing or prohibited item is actually on an employee’s person? Physically searching an individual could invite a charge of assault, battery, or sexual harassment, but employers may ask an employee to empty his or her own pockets (this is a much less invasive means of searching). Of course, the employer should have a valid reason for asking the employee to submit to a search.

Employers may even require that employees submit to a search as a condition of employment, though any physical searches that become necessary should be left to the police.

When employers do find it necessary to call the police, they can require an employee to remain on company property, and again, this can be made a condition of employment. However, physically forcing an employee to stay on company premises could result in a charge of false imprisonment. That means that an employer may have to let an employee (and possibly evidence) walk off their property. Once an employee leaves, the matter is for law enforcement to sort out.

A policy outlining an employer’s right to conduct searches should address searching an employee and an employee’s personal property.

Katie Loehrke is a human resources subject matter expert and editor with J. J. Keller & Associates, Inc., a nationally recognized compliance resource firm. The company offers a diverse line of products and services to address the broad range of responsibilities held by HR and corporate professionals. Loehrke specializes in employment law topics such as discrimination, privacy and social media, and affirmative action. She is the editor of J. J. Keller’s Employment Law Today and SUPER adVISOR newsletters. For more information, visit www.jjkeller.com/hr and www.prospera.com.

Legal Disclaimer: None of the information provided herein constitutes legal advice on behalf of Monster.